| [2021] FWCFB 4714 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021
cl.48, Schedule 1 of the Fair Work Act 2009
Casual terms award review 2021
(AM2021/54)
Various industries | |
VICE PRESIDENT HATCHER |
SYDNEY, 3 AUGUST 2021 |
Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021—casual amendments—review of modern awards—Stage 2, Group 1 Awards—provisional views.
[1] On 27 March 2021 the Fair Work Act 2009 (Cth) (Act) was amended by Schedule 1 to the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) (Amending Act). The amendments included introducing a definition of ‘casual employee’ in s.15A of the Act and casual conversion arrangements in Division 4A of Part 2-2 of the Act.
[2] The Amending Act inserted additional application, savings and transitional provisions into Schedule 1 of the Act. The newly inserted cl.48 of Schedule 1 to the Act requires the Fair Work Commission (Commission) to conduct a review and vary modern awards where necessary to remove inconsistencies, difficulties or uncertainties caused by the amendments to the Act (Casual Terms Review or Review).
[3] The Commission has commenced the Casual Terms Review and it is being conducted in 2 stages. In the first stage a five-member Full Bench considered the nature and scope of the Review, and reviewed ‘relevant terms’ (as defined in cl.48) in an initial group of 6 modern awards (Stage 1 awards).
[4] Interested parties were provided with the opportunity to file submissions and to respond to particular questions posed in a Discussion Paper 1 published by the Commission and a hearing was held on 24 June 2021.
[5] The five-member Full Bench issued a decision 2 in relation to Stage 1 on 16 July 2021 (July 2021 decision). The decision sets out the statutory framework for the review and provides a detailed discussion of ‘relevant’ terms in the Stage 1 priority awards and how they interact with the new definitions under the Act as amended.
[6] This Full Bench has been constituted to review the remaining modern awards in convenient groups. Those groups were first detailed in a statement 3 issued by the five-member Full Bench on 9 April 2021. The CPSU submitted that the State Government Agencies Award 2020 [MA000121], initially allocated to Group 3, should be considered in Group 4 so that its casual terms can be considered in the same group as the Victorian State Government Agencies Award 2015 [MA000134]. The Full Bench in the July 2021 decision agreed with this submission and the State Government Agencies Award 2020 [MA000121] has been moved to Group 4.
[7] Attachment A to this statement sets out an amended list of awards organised by grouping.
[8] The awards in Group 1 are as follows:
• Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020 [MA000115];
• Aged Care Award 2010 [MA000018];
• Air Pilots Award 2020 [MA000046];
• Aircraft Cabin Crew Award 2020 [MA000047];
• Airline Operations-Ground Staff Award 2020 [MA000048];
• Airport Employees Award 2020 [MA000049];
• Amusement, Events and Recreation Award 2020 [MA000080];
• Architects Award 2020 [MA000079];
• Book Industry Award 2020 [MA000078];
• Broadcasting, Recorded Entertainment and Cinemas Award 2020 [MA000091];
• Building and Construction General On-site Award 2020 [MA000020];
• Car Parking Award 2020 [MA000095];
• Cemetery Industry Award 2020 [MA000070];
• Children's Services Award 2010 [MA000120];
• Dry Cleaning and Laundry Industry Award 2020 [MA000096];
• Electrical, Electronic and Communications Contracting Award 2020 [MA000025];
• Fast Food Industry Award 2010 [MA000003];
• Food, Beverage and Tobacco Manufacturing Award 2020 [MA000073];
• Funeral Industry Award 2020 [MA000105];
• Hair and Beauty Industry Award 2010 [MA000005];
• Hydrocarbons Field Geologists Award 2020 [MA000064];
• Joinery and Building Trades Award 2020 [MA000029];
• Journalists Published Media Award 2020 [MA000067];
• Live Performance Award 2020 [MA000081];
• Mannequins and Models Award 2020 [MA000117];
• Meat Industry Award 2020 [MA000059];
• Mobile Crane Hiring Award 2020 [MA000032];
• Pest Control Industry Award 2020 [MA000097];
• Plumbing and Fire Sprinklers Award 2020 [MA000036];
• Professional Employees Award 2020 [MA000065];
• Racing Clubs Events Award 2020 [MA000013];
• Registered and Licensed Clubs Award 2020 [MA000058];
• Restaurant Industry Award 2020 [MA000119];
• Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100];
• Supported Employment Services Award 2020 [MA000103];
• Surveying Award 2020 [MA000066];
• Travelling Shows Award 2020 [MA000102]; and
• Water Industry Award 2020 [MA000113].
[9] We have reviewed the July 2021 decision and we adopt the reasoning of the Full Bench in relation to those ‘relevant terms’ that can be subject of the Review. Taking into account the reasoning and conclusions in the July 2021 decision, we have formed provisional views in relation to the Group 1 awards. These are set out in the Attachment B to this Statement.
[10] There are a number of specific issues contained within the Group 1 awards which we will deal with below.
[11] The July 2021 decision initially identified three categories of the casual definitions as follows: 4
a) ‘Engaged as a casual’ definition;
b) ‘Residual category’ definition; and
c) ‘Paid by the hour’ and ‘employment day-to-day’ definitions.
[12] In reviewing the awards in Group 1, we have identified a possible fourth category of definitions of casual employee and casual employment, being ‘engaged and paid in accordance with the provisions of this clause’ or similar. This fourth category of definition appears in the Building and Construction General On-site Award 2020 (Building and Construction Award), the Mobile Crane Hiring Award 2020 (Mobile Crane Award), the Joinery and Building Trades Award 2020 (Joinery Award), the Amusement, Events and Recreation Award 2020 (Amusement Award) and the Travelling Shows Award 2020 (Travelling Shows Award).
[13] The relevant provisions in each of the Building and Construction Award, the Mobile Crane Award, the Joinery Award and the Amusement Award read as follows:
• Building and Construction Award:
“12.1 A casual employee is engaged and paid in accordance with the provisions of clause 12.”
• Mobile Crane Award:
“9.1 A casual employee is engaged and paid in accordance with the provisions of clause 9.”
• Joinery Award:
“11.1 A casual employee is engaged and paid in accordance with the provisions of clause 11—Casual employees.”
• Amusement Award:
“11.1 Employees may be engaged as casual employees subject to the conditions in clause 11.”
• Travelling Shows Award (chapeau to clause 11):
“Employees may be engaged as casual employees, subject to the following conditions:”
[14] These definitions are similar to the ‘engaged as a casual’ type definition. In our provisional view the ‘engaged and paid in accordance with the provisions of this clause’ type definition is not consistent with the definition in s.15A of the Act in the sense that an employee clearly can be designated a casual under the award definition but not be a casual under the definition in the Act and vice versa.
[15] It is our provisional view that this type of definition should be removed from awards and replaced with a new definition of ‘casual employee’ in the definitions clause of an Award which references s.15A(1) of the Act to make it consistent or operate effectively with the Act.
[16] Clause 11.1 of the Travelling Shows Award provides a further definition for a casual employee under the Award:
“11.1 A casual employee is engaged by the hour for not more than 38 ordinary hours per week Monday to Sunday.”
(Emphasis added)
[17] The reference to ‘engaged by the hour’ in clause 11.1 is similar to the ‘paid by the hour’ casual definitions. Our provisional view is that, adopting the reasoning expressed in the July 2021 decision, 5 this is also not consistent with s.15A(1) of the Act and that clause 11.1 be amended as follows:
“11.1 A casual employee must not work for more than 38 ordinary hours per week Monday to Sunday.”
4. Casual conversion clauses
[18] A number of awards in Group 1 contain casual conversion clauses which differ and pre-date the model conversion clause. We will discuss each below in turn.
[19] The Food, Beverage and Tobacco Manufacturing Award 2020 (Food Manufacturing Award) does not contain the model conversion clause. Instead, it contains the following provision which has been included in the award since it commenced operation on 1 January 2010:
“10.8 Casual conversion to full-time or part-time employment
(a) A casual employee, other than an irregular casual employee, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of 6 months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time employment if the employment is to continue beyond the conversion process.
(b) Every employer of such an employee must give the employee notice in writing of the provisions of clause 10.8 within 4 weeks of the employee having attained such period of 6 months. The employee retains their right of election under clause 10.8 if the employer fails to comply with clause 10.8(b).
(c) Any such casual employee who does not within 4 weeks of receiving written notice elect to convert their contract of employment to full-time or part-time employment is deemed to have elected against any such conversion.
(d) Any casual employee who has a right to elect under clause 10.8(a), on receiving notice under clause 10.8(b) or after the expiry of the time for giving such notice, may give 4 weeks’ notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment, and within 4 weeks of receiving such notice the employer must consent to or refuse the election but must not unreasonably so refuse.
(e) Once a casual employee has elected to become and been converted to a full-time or part-time employee, the employee may only revert to casual employment by written agreement with the employer.
(f) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 10.8(d), the employer and employee must, subject to clause 10.8(d), discuss and agree on:
(i) which form of employment the employee will convert to, being full-time or part-time; and
(ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 9—Part-time employees.
(g) An employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert their contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed on between the employer and employee.
(h) Following such agreement being reached, the employee converts to full-time or part-time employment.
(i) Where, in accordance with clause 10.8(d) an employer refuses an election to convert, the reasons for doing so must be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.
(j) By agreement between the employer and the majority of the employees in the relevant workplace or a section or sections of it, or with the casual employee concerned, the employer may apply clause 10.8(a) as if the reference to 6 months is a reference to 12 months, but only in respect of a currently engaged individual employee or group of employees. Any such agreement reached must be kept by the employer as a time and wages record. Any such agreement reached with an individual employee may only be reached within the 2 months prior to the period of 6 months referred to in clause 10.8(a).
(k) For the purposes of clause 10.8, an irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.”
[20] In the July 2021 decision, the Full Bench considered a similar provision in the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award). In relation to that award, the Full Bench found that the award clause was less beneficial than the residual right to conversion now provided for in the National Employment Standards (NES) and that the clause conflicted with the NES residual right to convert.
[21] Having come to these conclusions, the Full Bench considered whether proposals advanced by a number of unions to modify the clause to supplement the casual conversion NES would make the Manufacturing Award consistent or operate effectively with the Act as amended. After considering the historical context, the Full Bench ultimately found that amending the clause as proposed would not meet the modern awards objective and determined to delete the clause from the Manufacturing Award and replace with a reference to the NES casual conversion entitlements.
[22] The abovementioned clause in the Food Manufacturing Award is in substantially the same form as that contained in the Manufacturing Award. For essentially the same reasons as stated in respect of the Manufacturing Award in the July 2021 decision, our provisional views are:
(1) The Food Manufacturing Award casual conversion clause is less beneficial overall than the residual right to casual conversion under the Act.
(2) Difficulty or uncertainty arises in relation to this clause because of the significantly different prescriptions in the award and the Act about the same subject matter.
(3) The term should be deleted and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.
[23] The Building Award does not contain the model conversion clause. Instead, it contains the following provision which has been included in the award since it commenced operation on 1 January 2010:
“13. Casual conversion to full-time or part-time employment
13.1 A casual employee, other than an irregular casual employee, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of 6 months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time employment if the employment is to continue beyond the conversion process.
13.2 For the purposes of clause 13.1, an irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.
13.3 Every employer of such an employee must give the employee notice in writing of the provisions of clause 13 within 4 weeks of the employee having attained such period of 6 months. The employee retains their right of election under clause 13 if the employer fails to comply with the clause.
13.4 Any such casual employee who does not within 4 weeks of receiving written notice elect to convert their contract of employment to full-time or part-time employment is deemed to have elected against any such conversion.
13.5 Any casual employee who has a right to elect under clause 13.1, on receiving notice under clause 13.3 or after the expiry of the time for giving such notice, may give 4 weeks’ notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment, and within 4 weeks of receiving such notice the employer must consent to or refuse the election but must not unreasonably refuse.
13.6 Once a casual employee has elected to become and has been converted to a full-time or part-time employee, the employee may only revert to casual employment by written agreement with the employer.
13.7 If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 13.5, the employer and employee must, subject to clause 13.5, discuss and agree on:
(a) which form of employment the employee will convert to, being full-time or part-time; and
(b) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 11—Part-time weekly hire employees.
13.8 An employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert their contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed on between the employer and employee.
13.9 Following such agreement being reached, the employee converts to full-time or part-time employment.
13.10 Where, in accordance with clause 13.5 an employer refuses an election to convert, the reasons for doing so must be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.
13.11 By agreement between the employer and the majority of the employees in the relevant workplace or a section or sections of it, or with the casual employee concerned, the employer may apply clause 13.1 as if the reference to 6 months is a reference to 12 months, but only in respect of a currently engaged individual employee or group of employees. Any such agreement reached must be kept by the employer as a time and wages record. Any such agreement reached with an individual employee may only be reached within the 2 months prior to the period of 6 months referred to in clause 13.1.
13.12 An employee must not be engaged and re-engaged to avoid any obligation under this award.”
[24] The Building Award casual conversion clause is in substantially the same form as the Manufacturing Award and the Food Manufacturing Award. Our reasoning above applies and it is our provisional view that the term should be deleted from the award and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.
[25] The Joinery Award does not contain the model conversion clause. Instead, it contains the following provision which has been included in the award since it commenced operation on 1 January 2010:
“12 Casual conversion to full-time or part-time employment
12.1 A casual employee, other than an irregular casual employee, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of 6 months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time employment if the employment is to continue beyond the conversion process.
12.2 Every employer of such an employee must give the employee notice in writing of the provisions of clause 12 within 4 weeks of the employee having attained such period of 6 months. The employee retains their right of election under clause 12 if the employer fails to comply with clause 12.2.
12.3 Any such casual employee who does not within 4 weeks of receiving written notice elect to convert their contract of employment to full-time or part-time employment is deemed to have elected against any such conversion.
12.4 Any casual employee who has a right to elect under clause 12.1, on receiving notice under clause 12.2 or after the expiry of the time for giving such notice, may give 4 weeks’ notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment, and within 4 weeks of receiving such notice the employer must consent to or refuse the election but must not unreasonably so refuse.
12.5 Once a casual employee has elected to become and been converted to a full-time or part-time employee, the employee may only revert to casual employment by written agreement with the employer.
12.6 If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 12.4, the employer and employee must, subject to clause 12.4, discuss and agree on:
(a) which form of employment the employee will convert to, being full-time or part-time; and
(b) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 10—Part-time employees.
12.7 An employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert their contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed between the employer and employee.
12.8 Following such agreement being reached, the employee converts to full-time or part-time employment.
12.9 Where, in accordance with clause 12.4, an employer refuses an election to convert, the reasons for doing so must be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.
12.10 By agreement between the employer and the majority of the employees in the relevant workplace or a section or sections of it, or with the casual employee concerned, the employer may apply clause 12.1 as if the reference to 6 months is a reference to 12 months, but only in respect of a currently engaged individual employee or group of employees. Any such agreement reached must be kept by the employer as a time and wages record. Any such agreement reached with an individual employee may only be reached within the 2 months prior to the period of 6 months referred to in clause 12.1.
12.11 For the purposes of clause 12.1, an irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.”
[26] The Joinery Award casual conversion clause is in substantially the same form as the Manufacturing Award, the Food Manufacturing Award and the Building Award. Our reasoning above applies and it is our provisional view that the term should be deleted from the award and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.
[27] A further matter of note in the Joinery Award is clause 11.7. This clause states as follows:
“11.7 An employee must not be engaged and re-engaged to avoid any obligation under this award.”
[28] When the Joinery Award was first made, this provision was a part of the casual conversion clause, sitting as clause 12.8 directly below the casual conversion clause. The clause appears to have been moved during the four yearly review of modern awards, in an Exposure Draft published 29 January 2020. The change is marked as an administrative change made by the Modern Awards team. It is not immediately apparent on the documents why the clause was removed from its place with the casual conversion clause. It is our provisional view that in line with clause 12 being deleted, clause 11.7 should also be deleted. This is consistent with the draft determination in the July 2021 decision to delete the equivalent clause (clause 11.6) in the Manufacturing Award.
[29] One final matter for consideration in the Joinery Award is clause 11.3, which provides as follows:
“11.3 A casual employee is engaged by the hour with a minimum daily engagement of 7.6 hours.”
(Emphasis added)
[30] Clause 11.3 appears to incorporate a ‘paid by the hour’ type casual definition (similar to the Pastoral Award 2020) 6 which is attached to the minimum engagement for a casual employee provision. Adopting the reasoning expressed in the July 2021 decision, this type of casual definition is inconsistent with s.15A(1) of the Act7 and should be deleted. It is our provisional view that clause 11.3 be amended as follows:
“11.3 A casual employee must have a minimum daily engagement of 7.6 hours.”
[31] The Mobile Crane Award does not contain the model conversion clause. Instead, it contains the following provision which has been included in the award since it commenced operation on 1 January 2010:
“9.7 Casual conversion to full-time employment
(a) A casual employee, other than an irregular casual employee, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of 6 months, thereafter has the right to elect to have their contract of employment converted to full-time weekly hire employment if the employment is to continue beyond the conversion process.
(b) Every employer of such an employee must give the employee notice in writing of the provisions of clause 9.7(a) within 4 weeks of the employee having attained such period of 6 months. The employee retains their right of election under clause 9.7(a) if the employer fails to comply with clause 9.7.
(c) Any such casual employee who does not within 4 weeks of receiving written notice elect to convert their contract of employment to full-time weekly hire employment is deemed to have elected against any such conversion.
(d) Any casual employee who has a right to elect under clause 9.7(a), on receiving notice under clause 9.7(b) or after the expiry of the time for giving such notice, may give 4 weeks’ notice in writing to the employer that they seek to elect to convert their contract of employment to full-time weekly hire employment, and within 4 weeks of receiving such notice the employer must consent to or refuse the election but must not unreasonably so refuse.
(e) Once a casual employee has elected to become and been converted to full-time weekly hire employment, the employee may only revert to casual employment by written agreement with the employer.
(f) Where, in accordance with clause 9.7(d) an employer refuses an election to convert, the reasons for doing so must be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.
(g) By agreement between the employer and the majority of the employees in the relevant workplace or a section or sections of it, or with the casual employee concerned, the employer may apply clause 9.7(a) as if the reference to 6 months is a reference to 12 months, but only in respect of a currently engaged individual employee or group of employees. Any such agreement reached must be kept by the employer as a time and wages record. Any such agreement reached with an individual employee may only be reached within the 2 months prior to the period of 6 months referred to in clause 9.7(a).
(h) For the purposes of clause 9.7(a), an irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.
(i) An employee must not be engaged and re-engaged to avoid any obligation under this award.”
[32] The Mobile Crane Award casual conversion clause is in substantially the same form as the Manufacturing Award, the Food Manufacturing Award, the Building Award and the Joinery Award. Our reasoning above applies and it is our provisional view that the term should be deleted from the award and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.
[33] The Plumbing and Fire Sprinklers Award 2020 (Plumbing Award) does not contain the model conversion clause. Instead, it contains the following provision which has been included in the award since it commenced operation on 1 January 2010:
“12.4 Casual conversion to full-time or part-time employment
(a) A casual employee, other than an irregular casual employee, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of 6 months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time employment if the employment is to continue beyond the conversion process.
(b) Every employer of such an employee must give the employee notice in writing of the provisions clause 12.4 within 4 weeks of the employee having attained such period of 6 months. The employee retains their right of election under clause 12.4 if the employer fails to comply with clause 12.4(b).
(c) Any such casual employee who does not within 4 weeks of receiving written notice elect to convert their contract of employment to full-time or part-time employment is deemed to have elected against any such conversion.
(d) Any casual employee who has a right to elect under clause 12.4(a), on receiving notice under clause 12.4(b) or after the expiry of the time for giving such notice, may give 4 weeks’ notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment, and within 4 weeks of receiving such notice the employer must consent to or refuse the election but must not unreasonably so refuse.
(e) Once a casual employee has elected to become and has been converted to a full-time or part-time employee, the employee may only revert to casual employment by written agreement with the employer.
(f) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 12.4(d), the employer and employee must, subject to clause 12.4(d), discuss and agree on:
(i) which form of employment the employee will convert to (full-time or part-time); and
(ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 11—Part-time employees.
(g) An employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert their contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed on between the employer and employee.
(h) Following such agreement being reached, the employee converts to full-time or part-time employment.
(i) Where, in accordance with clause 12.4(d) an employer refuses an election to convert, the reasons for doing so must be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.
(j) By agreement between the employer and the majority of the employees in the relevant workplace or a section or sections of it, or with the casual employee concerned, the employer may apply clause 12.4(a) as if the reference to 6 months is a reference to 12 months, but only in respect of a currently engaged individual employee or group of employees. Any agreement reached must be kept by the employer as a time and wages record. Any agreement reached with an individual employee may only be reached within the 2 months prior to the period of 6 months referred to in clause 12.4(a).
(k) For the purposes of clause 12.4, an irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.
(l) An employee must not be engaged and re-engaged to avoid any obligation under this award.”
[34] The Plumbing Award casual conversion clause is in substantially the same form as the Manufacturing Award, the Food Manufacturing Award, the Building Award, the Joinery Award and the Mobile Crane Award. Our reasoning above applies and it is our provisional view that the term should be deleted from the award and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.
[35] The Electrical, Electronic and Communications Contracting Award 2020 (Electrical Award) does not contain the model conversion clause. Instead, it contains the following provision which has been included in the award since it commenced operation on 1 January 2010:
“11.5 Casual conversion to full-time or part-time employment
(a) A casual employee, other than an irregular casual employee, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of 6 months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time employment if the employment is to continue beyond the conversion process.
(b) For the purposes of clause 11.5(a), an irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.
(c) Every employer of such an employee must give the employee notice in writing of the provisions of clause 11.5 within 4 weeks of the employee having attained such period of 6 months. The employee retains their right of election under clause 11.5 if the employer fails to comply with the clause.
(d) Any such casual employee who does not within 4 weeks of receiving written notice elect to convert their contract of employment to full-time or part-time employment is deemed to have elected against any such conversion.
(e) Any casual employee who has a right to elect under clause 11.5(a), on receiving notice under clause 11.5(c) or after the expiry of the time for giving such notice, may give 4 weeks’ notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment, and within 4 weeks of receiving such notice the employer must consent to or refuse the election but must not unreasonably refuse.”
[36] The Electrical Award conversion clause is similar in type to the Manufacturing Award clause although it has some noticeable differences.
[37] Like the Manufacturing Award and others described above, it is clear that clause 11.5(a) is more beneficial than the NES residual right to casual conversion to the extent that it allows a request for conversion to be made after only 6 months’ casual employment (similar to the Manufacturing Award clause).
[38] Clauses 11.5(a), (b), (c), (d) and (e) of the Electrical Award are similar, if not identical, to the Manufacturing Award clauses 11.5(a), (k), (b), (c) and (d) respectively. One point of difference between the casual conversion clauses in the Electrical Award and the Manufacturing Award is that clause 11.5(j) of the Manufacturing Award provides a facilitative mechanism which allows the requirement for 6 months’ regular casual employment to be extended to 12 months by majority agreement. The Full Bench in the July 2021 decision found this provision to conflict with the NES residual right to convert. 8 No such provision appears in the Electrical Award.
[39] Clause 11.5 appears less beneficial than the NES residual right to casual conversion as the time for the employer to respond to the request is shorter under the Act (21 days) than the award (4 weeks). We are of the view that clause 11.5 is also less beneficial than the residual right because it provides for broader and less defined grounds for the employer to refuse an election under clause 11.5(e) of the Electrical Award. In contrast, under the Act an employer must give an employee a written response to their request for casual conversion, the details of the reasons must be included in the response, the refusal must follow (not precede) consultation with the employee, and the reasonable grounds for refusal must be based on facts that are known, or reasonably foreseeable, at the time of refusing the request. The Act also provides examples of ‘reasonable grounds of refusal’. The Electrical Award clause only provides for a “one-off” right to elect for conversion, whereas the NES residual right is a continuing one.
[40] Our provisional views, for the above reasons and based on the reasoning and conclusion in the July 2021 decision, are:
(1) The Electrical Award clause is less beneficial overall than the residual right to casual conversion under the Act.
(2) Difficulty or uncertainty arises in relation to this clause because of the significantly different prescriptions in the award and the Act about the same subject matter.
(3) Clause 11.5 should be deleted from the Electrical Award and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1.
[41] The Registered and Licensed Clubs Award 2020 (Clubs Award) does not contain the model conversion clause. Instead, it contains the following provision which has been included in the award since it commenced operation on 1 January 2010.
“11.7 Conversion to full-time or regular part-time employment
(a) Clause 11.7 only applies to a regular casual employee.
(b) A regular casual employee means a casual employee who is employed by an employer on a regular and systematic basis for several periods of employment or on a regular and systematic basis for an ongoing period of employment during a period of at least 12 months.
(c) A regular casual employee who has been engaged by a particular employer for at least 12 months, may seek (subject to the provisions of clause 11.7) to have the employee’s contract of employment converted to full-time or part-time employment.
(d) An employee who has worked at the rate of an average of 38 or more hours a week in the period of 12 months’ casual employment may seek to have the employee’s employment converted to full-time employment.
(e) An employee who has worked at the rate of an average less than 38 hours a week in the period of 12 months’ casual employment may seek to have the employee’s employment converted to part-time employment.
(f) Where a casual employee seeks to convert to full-time or part-time employment, the employer may consent to or refuse the request, but only on reasonable grounds. In considering a request, the employer may have regard to any of the following factors:
(i) the size and needs of the workplace or enterprise;
(ii) the nature of the work the employee has been doing;
(iii) the qualifications, skills, and training of the employee;
(iv) the trading patterns of the workplace or enterprise (including cyclical and seasonal trading demand factors);
(v) the employee’s personal circumstances, including any family responsibilities; and
(vi) any other relevant matter.
(g) Where it is agreed that a casual employee will have the employee’s employment converted to full-time or regular part-time employment as provided for in clause 11.7, the employer and employee must discuss and agree upon:
(i) the form of employment to which the employee will convert; that is, full-time or part-time employment; and
(ii) if it is agreed that the employee will become a part-time employee, the matters referred to in clause 10—Part-time employees.
(h) The date from which the conversion will take effect is the commencement of the next pay cycle following such agreement being reached unless otherwise agreed.
(i) Once a casual employee has converted to full-time or part-time employment, the employee may only revert to casual employment with the written agreement of the employer.
(j) An employee must not be engaged and/or re-engaged (which includes a refusal to re-engage) to avoid any obligation under this award.
(k) Nothing in clause 11.7 requires:
(i) a casual employee to convert to full-time or part-time employment, nor permits an employer to require a casual employee to so convert;
(ii) the employer to convert the employment of a regular casual employee to full-time or part-time employment if the employee has not worked for 12 months or more in a particular establishment or in a particular classification stream; or
(iii) an employer to increase the hours of a regular casual employee seeking conversion to full-time or part-time employment.”
[42] The clause appears to be in an almost identical form to the casual conversion clause appearing in the Hospitality (General) Industry Award 2020 (Hospitality Award) which was considered in the July 2021 decision.
[43] In the July 2021 decision, the Full Bench considered that the provision may apply to some employees that the NES casual conversion entitlements do not and that overall, on balance, the provision was detrimental to employees when compared to the NES entitlement (see [253]).
[44] Adopting the reasoning of the July 2021 decision, it is our provisional view that the term should be deleted from the Clubs Award and replaced with a reference to the NES entitlements.
4.8 Mannequins and Models Award 2020 [MA000117]
[45] This award does not contain a casual conversion clause. The NES casual conversion provisions now apply to employers and employees covered by this award. There is no relevant provision in connection with casual conversion requiring consideration under clause 48. However, our provisional view is that the award should be varied pursuant to s 157(1) of the Act by adding a provision to refer to the NES casual conversion provisions. This will assist users of the award and achieve consistency across modern awards.
Casual and daily hire employee categories
[46] The Meat Industry Award 2020 (the Meat Award) at clause 8.1 provides for employees to be employed in one of four categories; full-time employment, part-time employment, casual employment and in respect of meat processing establishments only, daily hire employment (including part-time daily hire).
[47] Clause 12.1 of the Meat Award uses a ‘engaged as a casual’ definition for casual employees under the award. The simple application of the approach taken in the July 2021 decision would suggest that this definition should be replaced with a reference to the definition in s.15A of the Act. However, the position is complicated by the daily hire employment category in the award.
[48] Clause 11 of the Meat Award prescribes the incidents of daily hire employment in the following terms:
“11. Daily hire employees
11.1 An employer in a meat processing establishment may employ daily hire or part-time daily hire employees.
11.2 The daily hire employee will be employed by the day or shift or part thereof as the case may be, without breaking service for the purposes of the award and the NES as to payment for public holidays, personal/carer’s leave and annual leave. Employment will terminate at the end of each day or shift on which the employee is employed.
11.3 A daily hire employee may be required by the employer to work no less than 7.6 ordinary hours for each day they are employed.
11.4 A part-time daily hire employee may be required by the employer to work no less than 4 consecutive hours for each day they are employed.
11.5 Notwithstanding the termination of employment at the end of each day or shift, the engagement of a daily hire employee or part-time daily hire employee will continue until the engagement is terminated.
11.6 Engagement may be terminated by notice on either side as from the end of the ordinary working hours on the day or shift on which notice is given or at any later time specified by the notice.
11.7 An employee who terminates their engagement as from a time prior to the end of the ordinary working hours on any day or shift without having given the notice in accordance with clause 11.6 will not be entitled to payment in respect of any time actually worked on that day or shift.
11.8 A part-time daily hire employee will receive for the hours worked, on a pro rata basis, equivalent pay and conditions to those of daily hire employees who perform the same work.
11.9 In consideration of the rights conferred, a daily hire employee or a part-time daily hire employee will attend and offer for employment at the normal or other place specified by the employer at the usual starting time on each ordinary day unless notified on a particular day they are not required to attend.
11.10 Daily hire loading
For each day worked, a daily hire employee must be paid:
(a) the daily rate of 20% of the minimum weekly rate; and
(b) a loading of 10% of the daily rate,
for the classification in which they are employed.”
[49] The main features of daily hire employment in clause 11 are:
(1) Daily hire employment may only be utilised in meat processing establishments.
(2) Although employment is daily (and paid by the day), the engagement of the employee continues until notice of termination is given in accordance with clause 11.6.
(3) There is no prescribed pattern of work or requirement for an agreed pattern of work.
(4) The provision proceeds on the assumption that daily hire employees are entitled to the benefits of the NES applicable to non-casual employees, and provides for a 10% loading on the daily rate (instead of the standard 25% casual loading).
[50] On one view, daily hire employees fall within the statutory definition of casual employment in s.15A of the Act because, even though daily hire employment may arguably be offered and accepted on the basis of an advance commitment to ‘continuing and indefinite work’, the commitment does not extend to any agreed pattern of work since the employer can elect when to offer work by notifying the employee not to attend work under clause 11.9 or by refusing their ‘offer’ of employment if the employee does attend. If this is correct, then:
• the simple inclusion of a reference to the statutory definition of a casual employee in clause 12.1 may inadvertently make the provisions of clause 12, including the 25% casual loading in clause 12.9(a)(ii), applicable to daily hire employees; and
• daily hire employees are not in fact entitled to the NES benefits applicable to non-casual employees, meaning that if they are to receive such benefits, they must separately be provided for in the award itself.
[51] An alternate view might be that daily hire employees do not fall within the casual employment definition in s.15A because they have an advance commitment to continuing and indefinite work, with an agreed pattern of work comprised of the requirement under clause 11.9 for employees to attend for work each ordinary day at the usual starting time, unless notified otherwise under clause 11.9, and the minimum engagements prescribed by clause 11.3 or 11.4 (as applicable) whenever work is performed.
[52] Whether clause 11 is a relevant term and whether it is inconsistent with or gives rise to any interaction difficulty is largely dependent on which of the above alternative views is correct. This issue may have consequential effects for a number of clauses of the Award including clauses 8.1, 8.2, 18.9, 25.1, 26, 28, 35 and 36.
[53] We do not propose to express any provisional view about this issue at this stage. We will invite interested parties to file written submissions about this issue, including proposed variations to the award that may become necessary if either alternative view identified above is preferred.
Daily hire employment – transfer of employment
[54] Clauses 8.3 and 8.4 of the Meat Award provide for the transfer of employees from one employment category to another as follows:
“8.3 The employer and an employee may agree to the transfer of the employee from one category to another.
8.4 In respect to meat processing establishments where daily hire is permitted, if the employer and an employee are unable to agree upon a transfer from one category of employment to another, the employer may require the employee to transfer from:
(a) full-time to daily hire;
(b) daily hire to full-time;
(c) part-time to part-time daily hire; or
(d) part-time daily hire to part-time,
upon giving the employee 7 days’ notice of the transfer. Nothing in clause 8.4 authorises an employer to require an employee to transfer to casual employment.”
[55] If, as earlier discussed, daily hire employees fall within the definition of casual employee in s.15A(1), then clause 8.4 may give rise to inconsistency or interaction difficulty between the Meat Award and the Act in two respects:
(1) Paragraphs (b) and (d) provide for a means of compulsory conversion in meat processing establishments from a form of casual employment (daily hire) to permanent employment (full-time or part-time) that is inconsistent or gives rise to interaction difficulty with the NES casual conversion provisions.
(2) Paragraphs (a) and (c) entitles an employer operating a meat processing establishment to convert permanent employment (full-time or part-time) to a form of casual employment (daily hire), including where the employee has become permanent as a result of exercising casual conversion entitlements. This may be inconsistent with or give rise to interaction difficulty with s 66K of the Act, which provides:
To avoid doubt, an employee is taken, on and after the day specified in a notice for the purposes of paragraph 66E(1)(c) or 66J(1)(c), to be a full-time employee or part-time employee of the employer for the purposes of the following:
(a) this Act and any other law of the Commonwealth;
(b) a law of a State or Territory;
(c) any fair work instrument that applies to the employee;
(d) the employee's contract of employment.
[56] We do not propose at this stage to express any provisional view at this stage. We will invite interested parties to file written submissions about this issue, including proposed variations to the award that may become necessary.
Termination of employment – casual employees
[57] Clause 12.4 of the Meat Award provides:
“12.4 Employment of a casual employee will terminate at the end of each day or shift.”
[58] No clause in these precise terms was considered in the July 2021 decision. On one view, it is a provision which seeks to define casual employment in a manner similar to the ‘employment day-to-day’ type casual definitions discussed in [90]-[98] of the July 2021 decision. Such provisions were considered by the Full Bench to be relevant terms which give rise to an interaction difficulty within the meaning of cl.48(2)(b). 9 We do not propose to express any provisional view about clause 12.4 at this stage. We will invite interested parties to file written submissions about the issue.
Casual conversion
[59] The Meat Award contains two separate casual conversion provisions. In respect of non-meat processing establishments, the model casual conversion clause is contained in clause 12.13. Our provisional view, consistent with the July 2021 decision, is that this provision should be deleted and replaced with a reference to the NES casual conversion provisions.
[60] Clause 12.12 contains a modified version of the model casual conversion clause applicable to meat processing establishments which allows conversion from casual employment under the award (as presently defined) to daily hire employment. Clause 12.12 provides:
“12.12 Right to request casual conversion in meat processing establishments
(a) A person engaged by a particular employer as a regular casual employee may request that their employment be converted to full-time, part-time, daily hire or part-time daily hire employment.
(b) A regular casual employee is a casual employee who has over the preceding 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time, part-time or daily hire employee (including part-time daily hire employee) under the provisions of this award.
(c) A regular casual employee may request to have their casual employment converted to the category of non-casual employment corresponding to the pattern of hours the employee has worked over the period referred to in clause 12.12(b).
(d) Any request under clause 12.12 must be in writing and provided to the employer.
(e) Where a regular casual employee seeks to convert to full-time, part-time, daily hire or part-time daily hire employment, the employer may agree to or refuse the request. The request may only be refused on reasonable grounds and after consultation with the employee.
(f) Reasonable grounds for refusal may include:
(i) that it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a full-time, part-time, daily hire or part-time daily hire employee in accordance with the provisions of this award – that is, the casual employee is not a true regular casual employee as defined in clause 12.12(b);
(ii) that it is known, or reasonably foreseeable, that the regular casual employee’s position will cease to exist within the next 12 months;
(iii) that it is known, or reasonably foreseeable, that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months, other than where daily hire is in operation and the reduction in hours is due to seasonal factors; or
(iv) that it is known, or reasonably foreseeable, that there will be a significant change in the days and times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.
(g) For any ground of refusal to be reasonable it must be based on facts that are known or reasonably foreseeable.
(h) Where the employer refuses a regular casual employee’s request to convert, the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made.
(i) If the employee does not accept the employer’s refusal, this will constitute a dispute that will be dealt with under the dispute resolution procedure in clause 34—Dispute resolution. Under that procedure, the employee or the employer may refer the matter to the Fair Work Commission if the dispute cannot be resolved at the workplace level.
(j) Where it is agreed that a casual employee will have their employment converted to full-time, part-time, daily hire or part-time daily hire employment as provided for in clause 12.12, the employer and employee must discuss and record in writing:
(i) the form of employment to which the employee will convert—that is, full-time, part-time, daily hire or part-time daily hire employment; and
(ii) if it is agreed that the employee will become a part-time employee, the matters referred to in clause 10.2 where that provision is applicable, or otherwise the days the employee will be required to attend for work and the starting and finishing times for each such day.
(k) The conversion will take effect from the start of the next pay cycle following such agreement being reached unless otherwise agreed.
(l) Once a casual employee has converted to full-time, part-time, daily hire or part-time daily hire employment, the employee may only revert to casual employment with the written agreement of the employer.
(m) A casual employee must not be engaged and re-engaged (which includes a refusal to re-engage), or have their hours reduced or varied, in order to avoid any right or obligation under clause 12.12.
(n) Nothing in clause 12.12 obliges a regular casual employee to convert to full-time, part-time, daily hire or part-time daily hire employment, nor permits an employer to require a regular casual employee to so convert.
(o) Nothing in clause 12.12 requires an employer to increase the hours of a regular casual employee seeking conversion to full-time, part-time, daily hire or part-time daily hire employment.
(p) An employer must provide a casual employee whether a regular casual employee or not, with a copy of the provisions of clause 12.12 within the first 12 months of the employee’s first engagement to perform work. In respect of casual employees already employed as at 1 October 2018, an employer must provide such employees with a copy of the provisions of clause 12.12 by 1 January 2019.
(q) A casual employee’s right to request to convert is not affected if the employer fails to comply with the notice requirements in clause 12.12(p).”
[61] The purpose of the modification was explained in the Full Bench 4 yearly review of modern awards - Part-time employment and Casual employment 10 as follows:
“[41] We also consider that an appropriately modified casual conversion clause would be suitable for meat processing establishments and would meet the modern awards objective. The concept of a “regular casual employee” requires modification to take into account the existence of daily hire. Daily hire still has some of the characteristics of casual work (in that work is not guaranteed and may be quite irregular), but as earlier explained daily hire workers, unlike casual employees, have access to the NES. In practice the adoption of such a casual conversion clause would probably mean that most (if not all) casuals who converted would do so to daily hire rather than to full-time or part-time positions. However that is not a real difficulty, because the lack of access for casual workers to the NES was our key reason for adopting a casual conversion clause in the first place. Conversion from casual to daily hire employment would at least entitle an employee to the benefits of the NES. Further, because daily hire is a highly flexible mode of employment, it will be relatively straightforward for casuals in meat processing establishments to meet the criterion of working a pattern of hours that could equally have been worked under daily hire, so that such casuals may find it easier to qualify for conversion. Such an outcome is consistent with the general approach we have adopted, namely that casual employees who work for 12 months a pattern of hours that could have been worked by a non-casual should, prima facie, have access to conversion.”
[62] Consistent with the conclusions in the July 2021 decision, clause 12.12 is clearly a relevant term and, to the extent that it is reflective of the model casual conversion clause, is likely to give rise to uncertainty and difficulty relating to the interaction between the Meat Award and the Act. However, the question as to what variation we should make pursuant to cl.48(3) to make the award consistent or operate effectively with the Act is connected with the issue earlier discussed of whether daily hire employment fails within the definition of casual employment in s.15A. If it does, the question is whether clause 12.12 should be retained in modified form to allow for a form of conversion not contemplated by the NES casual conversion provisions, namely conversion from one form of casual employment, namely casual employment as currently defined in the award, to another form, namely daily hire employment. If it does not, the questions are:
• Do the NES conversion provisions accommodate conversion from casual employment to daily hire employment?
• If so, should clause 12.12 be deleted and replaced with a reference to the NES provisions?
• If not, should clause 12.12 be retained in a modified form?
[63] We do not propose to express any provisional views as to these matters at this stage. We will invite interested parties to file written submissions as to the matters, including any variations to clause 12.12 which might be made.
6. Building and Construction General On-Site Award 2020 [MA000020] – Daily hire employment
[64] Having regard to the discussion above concerning daily hire employment under the Meat Award, for completeness we refer to the provision for daily hire employment in clause 9 of the Building and Construction Award. Clause 9 provides:
“9. Daily hire employees
9.1 A daily hire employee means a tradesperson or labourer engaged subject to the following provisions:
(a) One day’s notice of termination of employment will be given on either side or one day’s pay will be paid or forfeited.
(b) Notice given at or before the usual starting time of any ordinary working day will expire at the completion of that day’s work.
(c) A tradesperson will be allowed one hour prior to termination to gather, clean, sharpen, pack and transport tools.
9.2 Nothing in clause 9 will affect the right of an employer to dismiss an employee without notice for misconduct or refusing duty.”
[65] Under clause 19.3(a)(i) of the Building and Construction Award, daily hire employees are paid an hourly rate that takes into account a factor of 8 days in respect of the incidence of loss of wages for periods of unemployment between jobs.
[66] Our provisional view is that daily hire employment does not fall within the definition of casual employment in s.15A of the Act and that clause 9 of the Building and Construction Award is therefore not a relevant term.
[67] The Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020 contains the following provision:
“12.4 Recognition of prior service
(a) On appointment, an employee will be classified and placed on the appropriate level on the salary scale in clause 16—Minimum rates, according to their qualifications and experience as an Aboriginal and/or Torres Strait Islander Health worker.
(b) Service as a part-time Aboriginal and/or Torres Strait Islander Health Worker will normally accrue on a pro-rata basis according to the percentage of a full-time Aboriginal and/or Torres Strait Islander Health Worker load undertaken in any year; provided that where the hours are more than 90% of a full-time load, service will count as a full-time year.
(c) In the case of a casual employee, the equivalent of a full-time year of service is 200 casual days.”
[68] This type of provision (at clause 12.4(c)) was not dealt with in the July 2021 decision. The provision was inserted into the award effective from 1 January 2021 by a Full Bench constituted to deal with the substantive matters regarding this award in the 4–yearly review of modern awards. 11
[69] Our provisional view is that the term is not inconsistent with the Act as amended and does not give rise to uncertainty or difficulty as to the award’s interaction with the Act. As the provision is not inconsistent, it is unnecessary for us to determine whether the term is a ‘relevant term’ within the meaning of cl. 48(1). Our provisional view is that no variation is warranted.
[70] Clause 10.5(b) of the Children’s Services Award 2010 provides:
“(b) A casual employee is one engaged for temporary and relief purposes.”
[71] The above provision is expressed in a way that, on one view, makes it definitional in relation to casual employment. However, its intended substantive effect may be to place an effective temporal limit on the employment of casual employees. For these reasons, it appears to be analogous to clause 12.1 of the Teachers Award considered in [91]-[98] of the July 2021 decision. Our provisional view is that clause 10.5(b) is a relevant term and, in its current form, may give rise to interaction difficulty with s.15A of the Act.
[72] Our provisional view is that, in conjunction with the introduction of a definition of casual employee in clause 3 of the Children’s Services Award 2010 that refers to s.15A of the Act (see Attachment B below), clause 10.5(b) should be varied to provide:
“(b) A casual employee is one may be engaged only for temporary and relief purposes.”
[73] While the Hydrocarbons Field Geologists Award 2020 provides for casual employment it does not currently contain a definition of the term casual employee.
[74] For clarity, our provisional view is that a definition of casual employee should be inserted into clause 2 as follows:
“casual employee has the meaning given by section 15A of the Act.”
[75] Interested parties are to provide any responses in relation to the provisional views concerning the Group 1 awards as set out above, except in relation to the Meat Award, and in Attachment B to this Statement by 4PM (AEST) TUESDAY, 10 AUGUST 2021.
[76] Interested parties are to provide submissions in relation to the issues identified above concerning the Meat Award by 4PM (AEST) FRIDAY, 13 AUGUST 2021.
VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR732419>
Award title |
MA code |
Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020 |
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Aged Care Award 2010 |
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Aircraft Cabin Crew Award 2020 |
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Airline Operations-Ground Staff Award 2020 |
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Air Pilots Award 2020 |
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Airport Employees Award 2020 |
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Amusement, Events and Recreation Award 2020 |
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Architects Award 2020 |
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Book Industry Award 2020 |
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Broadcasting, Recorded Entertainment and Cinemas Award 2020 |
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Building and Construction General On-site Award 2020 |
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Car Parking Award 2020 |
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Cemetery Industry Award 2020 |
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Children's Services Award 2010 |
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Dry Cleaning and Laundry Industry Award 2020 |
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Electrical, Electronic and Communications Contracting Award 2020 |
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Fast Food Industry Award 2010 |
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Food, Beverage and Tobacco Manufacturing Award 2020 |
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Funeral Industry Award 2020 |
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Hair and Beauty Industry Award 2010 |
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Hydrocarbons Field Geologists Award 2020 |
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Joinery and Building Trades Award 2020 |
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Journalists Published Media Award 2020 |
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Live Performance Award 2020 |
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Mannequins and Models Award 2020 |
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Meat Industry Award 2020 |
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Mobile Crane Hiring Award 2020 |
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Pest Control Industry Award 2020 |
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Plumbing and Fire Sprinklers Award 2020 |
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Professional Employees Award 2020 |
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Racing Clubs Events Award 2020 |
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Registered and Licensed Clubs Award 2020 |
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Restaurant Industry Award 2020 |
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Social, Community, Home Care and Disability Services Industry Award 2010 |
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Supported Employment Services Award 2020 |
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Surveying Award 2020 |
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Travelling Shows Award 2020 |
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Water Industry Award 2020 |
Award title |
MA code |
Alpine Resorts Award 2020 |
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Aluminium Industry Award 2020 |
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Ambulance and Patient Transport Industry Award 2020 |
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Animal Care and Veterinary Services Award 2020 |
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Aquaculture Industry Award 2020 |
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Asphalt Industry Award 2020 |
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Black Coal Mining Industry Award 2020 |
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Cement, Lime and Quarrying Award 2020 |
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Cleaning Services Award 2020 |
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Concrete Products Award 2020 |
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Corrections and Detention (Private Sector) Award 2020 |
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Cotton Ginning Award 2020 |
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Gas Industry Award 2020 |
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Graphic Arts, Printing and Publishing Award 2020 |
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Health Professionals and Support Services Award 2020 |
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Horse and Greyhound Training Award 2020 |
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Hydrocarbons Industry (Upstream) Award 2020 |
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Marine Tourism and Charter Vessels Award 2020 |
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Maritime Offshore Oil and Gas Award 2020 |
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Medical Practitioners Award 2020 |
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Mining Industry Award 2020 |
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Nurses Award 2020 |
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Oil Refining and Manufacturing Award 2020 |
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Passenger Vehicle Transportation Award 2020 |
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Pharmaceutical Industry Award 2020 |
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Pharmacy Industry Award 2020 |
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Poultry Processing Award 2020 |
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Premixed Concrete Award 2020 |
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Professional Diving Industry (Industrial) Award 2020 |
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Professional Diving Industry (Recreational) Award 2020 |
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Racing Industry Ground Maintenance Award 2020 |
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Rail Industry Award 2020 |
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Road Transport (Long Distance Operations) Award 2020 |
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Road Transport and Distribution Award 2020 |
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Salt Industry Award 2020 |
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Seafood Processing Award 2020 |
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Security Services Industry Award 2020 |
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Stevedoring Industry Award 2020 |
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Storage Services and Wholesale Award 2020 |
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Textile, Clothing, Footwear and Associated Industries Award 2020 |
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Timber Industry Award 2020 |
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Transport (Cash in Transit) Award 2020 |
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Vehicle Manufacturing, Repair, Services and Retail Award 2020 |
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Waste Management Award 2020 |
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Wool Storage, Sampling and Testing Award 2020 |
Award title |
MA code |
Banking, Finance and Insurance Award 2020 |
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Business Equipment Award 2020 |
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Clerks - Private Sector Award 2020 |
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Coal Export Terminals Award 2020 |
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Commercial Sales Award 2020 |
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Contract Call Centres Award 2020 |
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Dredging Industry Award 2020 |
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Educational Services (Post-Secondary Education) Award 2020 |
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Educational Services (Schools) General Staff Award 2020 |
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Electrical Power Industry Award 2020 |
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Fitness Industry Award 2020 |
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Gardening and Landscaping Services Award 2020 |
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Higher Education Industry-Academic Staff-Award 2020 |
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Higher Education Industry-General Staff-Award 2020 |
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Horticulture Award 2020 |
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Labour Market Assistance Industry Award 2020 |
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Legal Services Award 2020 |
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Local Government Industry Award 2020 |
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Marine Towage Award 2020 |
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Market and Social Research Award 2020 |
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Miscellaneous Award 2020 |
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Nursery Award 2020 |
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Port Authorities Award 2020 |
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Ports, Harbours and Enclosed Water Vessels Award 2020 |
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Real Estate Industry Award 2020 |
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Seagoing Industry Award 2020 |
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Silviculture Award 2020 |
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Sporting Organisations Award 2020 |
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Sugar Industry Award 2020 |
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Telecommunications Services Award 2020 |
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Wine Industry Award 2020 |
Award title |
MA code |
Aboriginal Legal Rights Movement Award 2016 |
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Airservices Australia Enterprise Award 2016 |
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Australian Broadcasting Corporation Enterprise Award 2016 |
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Australian Bureau of Statistics (Interviewers) Enterprise Award 2016 |
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Australian Capital Territory Public Sector Enterprise Award 2016 |
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Australian Federal Police Enterprise Award 2016 |
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Australian Government Industry Award 2016 |
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Australian Nuclear Science and Technology Organisation (ANSTO) Enterprise Award 2016 |
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Australian Public Service Enterprise Award 2015 |
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Australia Post Enterprise Award 2015 |
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Christmas Island Administration Enterprise Award 2016 |
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Chullora Printing Award 2015 |
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CSIRO Enterprise Award 2016 |
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GrainCorp Country Operations Award 2015 |
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Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Modern Award 2018 |
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Metropolitan Newspapers (South Australia and Tasmania) Printing Award 2015 |
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Northern Territory News Award 2015 |
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Northern Territory Public Sector Enterprise Award 2016 |
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Note Printing Australia Award 2016 |
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Nurses and Midwives (Victoria) State Reference Public Sector Award 2015 |
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Nurses (ANMF - Victorian Local Government) Award 2015 |
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Optus Award 2015 |
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Parliamentary Departments Staff Enterprise Award 2016 |
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Printing Industry – Herald & Weekly Times – Production Award 2015 |
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Queensland Newspapers Pty Ltd Printing (Murarrie) Award 2015 |
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Reserve Bank of Australia Award 2016 |
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State Government Agencies Award 2020 |
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Telstra Award 2015 |
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Victorian Government Schools Award 2016 |
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Victorian Government Schools - Early Childhood - Award 2016 |
MA00015 |
Victorian Local Government Award 2015 |
MA000132 |
Victorian Local Government (Early Childhood Education Employees) Award 2016 |
MA000150 |
Victorian Public Service Award 2016 |
MA000135 |
Victorian State Government Agencies Award 2015 |
MA000134 |
Viterra Bulk Handling and Storage of Grains, Pulses and Minerals Award 2015 |
MA000136 |
Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020 MA000115 | |||
Clause |
Provisional view |
Action |
Notes |
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144)
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1.
Insert new definition of ‘casual employee’ in clause 2-Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.4—minimum period of engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
|
11.5—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144)
Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.5.
Insert new clause 11.5 as follows: 11.5 Offers and requests for casual conversion
Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES.
NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 31—Dispute resolution. |
|
12.4(c)—recognition of prior service |
Not inconsistent |
No variation necessary |
|
14.2—casual payment for work on public holiday |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
20.2 and 20.5(b) —overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
21.5—shiftwork for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
Aged Care Award 2010 MA000018 | |||
Clause |
Provisional view |
Action |
Notes |
10.4(a)—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) ‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144)
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) The remainder of the clause sets the maximum ordinary hours per week at 38 hours. Retain this part of clause. Replace casual definition with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Propose the following wording for 10.4(a): (a) A casual employee may Insert new definition of ‘casual employee’ in clause 3 as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.4(b)—casual loading |
Not inconsistent – no variation necessary ([176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
10.5—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144)
Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 10.5
Insert new clause 10.5 as follows: 10.5 Offers and requests for casual conversion
Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES.
NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
14.4(c) —regular and systematic casual employee |
Definition of ‘regular and systematic casual employee’ is relevant term –update term - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
22.3—excluded from rostered days off |
Not a relevant term |
No variation necessary |
|
22.6(b)—display of casual roster not obligatory |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
22.7(b) —minimum period of engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
|
22.8(a)—broken shift |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
22.9—sleepovers |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
23.2 and 23.3—penalty rates for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
25.1(c) and (d) —overtime for casuals—rest period after overtime |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
29.2(c)—casual payment for work on public holiday |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
33—Leave to deal with Family and Domestic Violence |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Aircraft Cabin Crew Award 2020 MA000047 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—requirement to inform at engagement |
Not inconsistent (at [121] of [2021] FWCFB 4144) |
No variation necessary |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144)
Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2-Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.5—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144)
Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.5 and insert new clause 11.5 as follows: 11.5 Offers and requests for casual conversion
Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES.
NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 28—Dispute resolution. |
|
11.4—casual pay period |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
|
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation required |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3—minimum payments |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation required |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
B.1.1(e)—allowances for casual employees |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation required |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
Airline Operations-Ground Staff Award 2020 MA000048 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—requirement to inform at engagement |
Not inconsistent (at [121] of [2021] FWCFB 4144) |
No variation necessary |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144)
Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3—minimum payments |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.5.
Insert new clause 11.5 as follows: 11.5 Offers and requests for casual conversion
Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES.
NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 34—Dispute resolution. |
|
18.5(c)(ii)—regular and systematic casual employee |
Definition of ‘regular and systematic casual employee’ is relevant term - update term - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
19.3—casual pay period |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
21.10—accident pay |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
11.4 and 24.1(b)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
F.4.3(c) —NTW - casual loading to be disregarded in calculating if trainee’s pay reduced |
General term - not inconsistent – ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
Air Pilots Award 2020 MA000046 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—requirement to inform at engagement |
Not inconsistent (at [120] and [121] of [2021] FWCFB 4144) |
No variation necessary. |
|
9.7—casual employee defined as a pilot who does not meet the definition of a part-time or full-time pilot. |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144)
Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 9.7.
Insert new definition of ‘casual employee’ in clause 2-Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.3—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
10.5—minimum payments |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
10.6—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144)
Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 10.6.
Insert new clause 10.6 as follows: 10.6 Offers and requests for casual conversion
Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES.
NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 32—Dispute resolution. |
|
C.6.2—Aerial application operations – casuals excluded from personal leave provisions |
Not a relevant term |
No variation necessary |
|
C.7.2 – Aerial application operations – payment for casual pilot |
Not a relevant term |
No variation necessary |
|
Airport Employees Award 2020 MA000049 | |||
Clause |
Provisional view |
Action |
Notes |
9—full-time employee |
Residual definition of full-time employee – not a relevant term (at [134] and [135] of [2021] FWCFB 4144) |
No variation required. |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.5—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.5 Insert new clause 11.5 as follows: 11.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 34—Dispute resolution. |
|
11.4—minimum payments |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
23.3(c)—overtime for casuals |
General term - not inconsistent – no variation necessary (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
31.4—penalty rates for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
F.4.3(c) —casual loading to be disregarded in calculating if trainee’s pay reduced |
General term - not inconsistent – no variation necessary (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
Amusement, Events and Recreation Award 2020 MA000080 | |||
Clause |
Provisional view |
Action |
Notes |
10.8—definition of casual employee (residual category definition found in Part-time provisions) |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144)
Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 10.8. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.1—circumstances in casual employees may be engaged 11.2-casual employee is engaged by the hour |
Operate together as an ‘engaged by the hour’ definitional requirement, similar to ‘paid by the hour’ definition. Inconsistent with s.15A(1) (see [81]-[84] of [2021] FWCFB 4144) Retain requirement for casuals to work not more than 38 ordinary hours per week and delete remainder. |
Delete clause 11.1. Proposed modification to clause 11.2: 11.1 A casual employee Renumber following subclauses |
|
11.7—minimum payment and engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.8—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144)
Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.8.
Insert new clause 11.8 as follows: 11.8 Offers and requests for casual conversion
Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES.
NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 29—Dispute resolution. |
|
13.6(b) — ordinary hours for casual exhibition employees |
General term - not inconsistent – no variation necessary (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
15.2—paid rest breaks for casuals |
General term - not inconsistent – no variation necessary (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
16.3(e)—regular and systematic casual |
Definition of ‘regular and systematic casual employee’ is relevant term –update terms - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
18.2(f)—cancellation of shift allowance |
General term - not inconsistent – no variation necessary (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
20.1, 20.3, 20.7(d)—overtime for casuals |
General term - not inconsistent – no variation necessary (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
26.2(c) —public holiday rate for casual exhibition employees |
General term - not inconsistent – no variation necessary (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
Architects Award 2020 MA000079 | |||
Clause |
Provisional view |
Action |
Notes |
8—full-time employee |
Residual definition of full-time employee – not a relevant term (at [134] and [135] of [2021] FWCFB 4144) |
No variation required. |
|
10.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144)
Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 10.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.2—casual loading |
Not inconsistent – (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
10.5—minimum engagement and payment |
Not inconsistent – (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
10.6—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144)
Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 10.6
Insert new clause 10.6 as follows: 10.6 Offers and requests for casual conversion
Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES.
NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 26—Dispute resolution. |
|
17.2—overtime for casuals |
General term - not inconsistent – (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
Book Industry Award 2020 MA000078 | |||
Clause |
Provisional view |
Action |
Notes |
10.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 10.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.2—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
10.5—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 10.5 Insert new clause 10.5 as follows: 10.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 27—Dispute resolution. |
|
18.2—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
Broadcasting, Recorded Entertainment and Cinemas Award 2020 MA000091 | |||
Clause |
Provisional view |
Action |
Notes |
8.1—requirement to inform at engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
11.1—definition of casual and terms of engagement |
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) Requirement to inform casuals when engaging them of their hours of work - uncertainty or difficulty exists – delete clause (see [124] and [126] of [2021] FWCFB 4144) |
Delete definition of ‘paid by the hour’ casual within clause 57.4(a). Propose the following wording: 11.1 Insert new definition of ‘casual employee’ in clause 2-Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
Notice of hours of work provision comparable to Pastoral Award (cl.11.3(b)) |
11.6—Right to request casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.6. Insert new clause 11.6 as follows: 11.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 26—Dispute resolution. |
|
11.5—Minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation required. |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.2—Casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary. |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3, 31.2(b), 31.6(b), 31.8(b), 42.1, 42.2(b), 42.4(b), 42.5(b), 43.2, 55.2, 55.3, 55.4—overtime for casuals |
General terms - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary. |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.4—Casual pay period |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary. |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
13.8—Artist rates |
Heading to clause 13.8(a) incorporates ‘engaged by the hour’ type definition. Not consistent (see [81]-[84] of [2021] FWCFB 4144) Delete definitional elements from heading. Balance of term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
Proposed new headings: (a) Proposed consequential amendments to heading to (b) and (c): (b) (c) |
|
15.2(a)(ii)—first aid allowance |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation required. |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
42.6—casuals excluded from work on rostered day off |
Not a relevant term |
||
57.1—cinema employees—requirement to inform at engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
57.4(a) —Cinema employees – definition of casual and terms of engagement |
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) Requirement to inform casuals when engaging them of their hours of work - uncertainty or difficulty exists – delete clause (see [124] and [126] of [2021] FWCFB 4144) |
Delete definition of ‘paid by the hour’ casual within clause 57.4(a). Suggest the following wording: (a) Insert new definition of ‘casual employee’ in clause 2-Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
Notice of hours of work provision comparable to Pastoral Award (cl.11.3(b)) |
57.4(b) —Cinema employees – casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary. |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
57.4(c) —Cinema employees – overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary. |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
57.4(d)—Cinema employees – casual pay period |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary. |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
57.4(e)—Cinema employees – minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation required. |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
Building and Construction General On-site Award 2020 MA000020 | |||
Clause |
Provisional view |
Action |
Notes |
7.2—facilitative provisions |
Relevant term re reference to clause 13.11 - delete entire reference consistent with provisional view concerning clause 13.11 (see below) |
Vary clause 7.2 to delete entire reference to clause 13.11 |
|
9—Daily hire employees |
Not a relevant term |
No variation required |
|
12.1—casual definition |
Engaged and paid in accordance with casual clause Similar to ‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 12.1 Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
12.2—Casuals entitled to all rates excluding annual leave etc |
Not a relevant term |
||
12.3—requirement to inform |
Includes a requirement to inform employee in writing of hours of work. Such provisions not directly inconsistent but give rise to difficulty relating to interaction between award clause and casual definition in Act [124] Similar provision in Pastoral Award was found not to be necessary to achieve modern awards objective (at [126] of [2021] FWCFB 4144) |
Propose the following wording: 12.3 An employer, when engaging a person for casual employment, must inform the employee, in writing, that the employee is to be employed as a casual, stating by whom the employee is employed, the job to be performed, the classification level, |
|
12.4—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
12.5—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
12.6 and 29—overtime for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
12.6, 12.7 and 30—penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
13—casual conversion |
Replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the clause (per reasoning re Manufacturing Award– see [247] of [2021] FWCFB 4144) |
Delete clause 11.5. Insert new clause 11.5 as follows: 11.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 29—Dispute resolution. |
|
19.8—regular and systematic employee |
Definition of ‘regular and systematic casual employee’ is a relevant term –update terms - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’
Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
27.7—accident pay |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation required |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
Car Parking Award 2020 MA000095 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—requirement to inform at engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
10.6—part-time employee (residual category casual definition) |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) |
Delete clause 10.6 |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144)
Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.3—termination of employment relationship with one hour’s notice |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
11.4—casual loading |
Not inconsistent – ([176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.6 and 21.3—overtime |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.7—minimum payment |
Not inconsistent – (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.8—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.8 Insert new clause 11.8 as follows: 11.8 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 32—Dispute resolution. |
|
19.2(a)(ii) and 19.3(iii) —first aid allowance and laundering allowance |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
22.2—shiftwork for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
Cemetery Industry Award 2020 MA000070 | |||
Clause |
Provisional view |
Action |
Notes |
10.1— casual employee definition |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144)
Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144). |
Delete clause 10.1 Insert new definition of ‘casual employee’ in clause 2-Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.3—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
10.4 and 18.1(b) —overtime for casual employees |
Not inconsistent – (see [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
10.5—minimum payment |
Not inconsistent – (see [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
10.6—casual conversation |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 10.6. Insert new clause 10.6 as follows: 10.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 27—Dispute resolution. |
|
14.3(c) —regular and systematic employee |
Definitions of ‘regular and systematic casual employee’ - relevant term –update terms - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
Children's Services Award 2010 MA000120 | |||
Clause |
Provisional view |
Action |
Notes |
10.2—requirement to inform at engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
10.5(a) —definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace award casual definitions with reference to s.15A(1) to make award consistent or operate effectively (see [105], [110], [111] of [2021] FWCFB 4144) |
Propose the following wording for 10.5(a): (a) A casual employee Insert definition of ‘casual employee’ in clause 3-Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
Submission from the UWU that the definitional restriction of 10.5(b) overrides and or qualifies the ‘engaged as such definition’ |
10.5(b) —limitation on casual employment |
‘A casual employee is one engaged for temporary and relief purposes’. Relevant terms and may cause interaction difficulty because expressed in a definitional way. Remove definitional element but retain substantive temporal limitation on casual employment similar to the maximum term of employment in the Teachers Award and dealt with at [163] of [2021] FWCFB 4144). |
Vary clause 10.5(b) to provide: “(b) A casual employee |
|
10.6—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 10.6. Insert new clause 10.6 as follows: 10.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
14.5(c) —Regular and systematic casual |
Definition of ‘regular and systematic casual employee’ - relevant term –update term - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
10.5(e), 23.1(c) and 23.2(b) —overtime for casuals |
General term - not inconsistent – (see [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
10.5(e) and 23—penalty rates for casuals |
General term - not inconsistent (see [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
Dry Cleaning and Laundry Industry Award 2020 MA000096 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—requirement to inform at engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—definition of casual employee |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) |
Delete clause 11.2. |
|
11.4 and 11.5—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.6—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.7—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.8—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.8 (model clause). Insert new clause 11.8 as follows: 11.8 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 34—Dispute resolution. |
|
18.4(f) —regular and systematic employee |
Definition of ‘regular and systematic casual employee’ is a relevant term –update term - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
21.8—calculation of accident pay for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
Electrical, Electronic and Communications Contracting Award 2020 MA000025 | |||
Clause |
Provisional view |
Action |
Notes |
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete the words “A casual employee is one engaged and paid as a casual employee.” from clause 11.1. Do not delete the words “A casual employee’s ordinary hours of work are the lesser of an average of 38 hours per week or the hours required to be worked by the employer.” Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2 and 11.3—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.4 and 20.1(b) —overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.4 and 13.13—shiftwork for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.5—casual conversion (award specific) |
Replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [249] of [2021] FWCFB 4144) |
Delete clause 11.5. Insert new clause 11.5 as follows: 11.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 29—Dispute resolution. |
|
11.6 – minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary. |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
16.4(b)(i) —regular and systematic employee |
Definition of ‘regular and systematic casual employee’ is a relevant term –update term - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
20.4(a)(ii) —penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
Fast Food Industry Award 2010 MA000003 | |||
Clause |
Provisional view |
Action |
Notes |
10.2—requirement to inform at engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
12.8—definition of casual employee |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 12.8. Insert new definition of ‘casual employee’ in clause 3-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
13.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 13.1. |
|
13.6—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 13.6. Insert new clause 13.6 as follows: XX.X Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
13.5—minimum engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary. |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
13.4—casual pay period |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary. |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
13.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary. |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
20.8—accident pay for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary. |
This provision provides for ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
19.2(b)(ii) —special clothing allowance |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary. |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
13.3, 26.1(b), 26.3, 26.4—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
25.5, 30.4—penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
29.2 and 29.3—casual entitlement to unpaid personal/carer’s leave |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation required |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
Food, Beverage and Tobacco Manufacturing Award 2020 MA000073 | |||
Clause |
Provisional view |
Action |
Notes |
8—full-time employee |
Residual definition of full-time employee – not a relevant term (at [134] and [135] of [2021] FWCFB 4144) |
No variation required. |
|
10.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 10.1. Insert new definition of ‘casual employee’ in clause 33-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.8 and 10.9—casual conversion |
Award-specific - replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [247] of [2021] FWCFB 4144) |
Delete clause 10.8. Insert new clause XX.X as follows: XX.X Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 33—Dispute resolution. |
Clause is comparable to Manufacturing Award cl.11.5 Facilitative provision affecting cl.10.8(j) - see cl.7.3(a) |
10.6—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
Clause is comparable to Manufacturing Award cl.11.3 Facilitative provision affecting cl.10.6 – see cl.7.2(a) FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
10.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
10.3—all-purpose rate for casuals |
General term - not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation required |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
10.4 and 10.5—definition and operation of ‘casual ordinary hourly rate’ |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation required |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
10.7(d)—requirement to inform at engagement |
Includes a requirement to inform at engagement of likely number of hours at clause 10.7(d). Such provisions not directly inconsistent but give rise to difficulty relating to interaction between award clause and casual definition in Act [124] Provisions not necessary to achieve modern awards objective (at [126] of [2021] FWCFB 4144) |
Delete clause 10.7(d). |
|
23.1(f)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
Funeral Industry Award 2020 MA000105 | |||
Clause |
Provisional view |
Action |
Notes |
10.6—definition of casual employee |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 10.6. Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.1—definition of casual employee |
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3, 19.1(b), 20.6(b) and 20.7(b) —overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.4 & 11.5 – minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.6—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.6. Insert new clause 11.6 as follows: 11.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 30—Dispute resolution. |
|
Hair and Beauty Industry Award 2010 MA000005 | |||
Clause |
Provisional view |
Action |
Notes |
12.6—definition of casual employee |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 12.6. Insert new definition of ‘casual employee’ in clause 3-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
12.10—employment transfer |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation required |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC Full Bench held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
13.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 13.1. Insert new definition of ‘casual employee’ in clause 3-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
13.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
13.3 and 31.2(b) —overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
13.4—list of provisions that do not apply to casuals |
Not a relevant term |
||
13.5—casual pay periods |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
13.6—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
13.7—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 13.7. Insert new clause 13.7 as follows: 13.7 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
19.4(c) —regular and systematic employee |
Definition of ‘regular and systematic casual employee’ is a relevant term –update term - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 3: regular casual employee has the meaning given by section 12 of the Act. |
|
31.2(c) and (d) —penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
32.2—breaks for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
37.1—leave to deal with family and domestic violence |
Not inconsistent |
No variation necessary |
|
Hydrocarbons Field Geologists Award 2020 MA000064 | |||
Clause |
Provisional view |
Action |
Notes |
9—casual definition |
This award does not appear to define the term casual employee. This term should be defined within the award. We will insert the definition of a casual employee with reference to the Act. |
Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
This award was the subject of two submissions, one from ABI and one from Ai Group, both submittting that the category assigned this award (‘engaged/paid by hour) in the Discussion Paper was incorrect. AiG suggested it should appear in the ‘Other’ category. |
9.2—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
9.5—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 9.5 Insert new clause 9.5 as follows: 9.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 24—Dispute resolution. |
|
Joinery and Building Trades Award 2020 MA000029 | |||
Clause |
Provisional view |
Action |
Notes |
9—full-time employee |
Residual definition of full-time employee – not a relevant term (at [134] and [135] of [2021] FWCFB 4144) |
No variation necessary. |
|
11.1—definition of casual employee |
Engaged and paid in accordance with casual clause Similar to ‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1.
Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
Ai Group submitted that this award falls into an ‘other’ category in their submission. |
11.2—requirement to inform |
Includes a requirement to inform employee in writing of hours of work.
Such provisions not directly inconsistent but give rise to difficulty relating to interaction between award clause and casual definition in Act (at [124]
Similar provision in Pastoral Award was found not to be necessary to achieve modern awards objective (at [126] of [2021] FWCFB 4144) |
Propose the following wording:
11.2 An employer, when engaging a person for casual employment, must inform the employee, in writing, that the employee is to be employed as a casual, stating by whom the employee is employed, the job to be performed, the classification level, |
|
12—casual conversion |
Award-specific clause -replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [247] of [2021] FWCFB 4144) |
Delete clause 12. Insert new clause 12 as follows: 12 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 35—Dispute resolution. |
Clause comparable to Manufacturing Award cl.11.5 |
22.7—accident pay |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation required |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
11.3—minimum engagement |
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Propose the following wording: 11.3 A casual employee must have |
|
11.5 and 24.2(c) —overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.5, 24.3(f), 24.4(b) —penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.6—termination of employment |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
E.4.3(c) —National Training Wage – calculation of reduction to trainee’s pay |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation required |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
Journalists Published Media Award 2020 MA000067 | |||
Clause |
Provisional view |
Action |
Notes |
4.9(b) —casuals exempted from award provisions |
Not a relevant term |
||
10.1—definition of casual employee |
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 10.1. Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.2—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary. |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
10.3—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
10.4—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
10.6—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 10.6. Insert new clause 10.6 as follows: 10.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 28—Dispute resolution. |
|
Live Performance Award 2020 MA000081 | |||
Clause |
Provisional view |
Action |
Notes |
8.1—requirement to inform at engagement (whether f-t, p-t or casual) |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
8.2—requirement to provide written statement including hours of work |
Includes a requirement to inform employee in writing of hours of work. Such provisions not directly inconsistent but give rise to difficulty relating to interaction between award clause and casual definition in Act [124] Similar provision in Pastoral Award was found not to be necessary to achieve modern awards objective (at [126] of [2021] FWCFB 4144) |
Amend clause 8.2 as follows: 8.2 All employees must be provided with a written statement stating who they are employed by and setting out their classification |
|
9—Casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 9. Insert new clause 9 as follows: 9 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 24—Dispute resolution. |
|
25.3—special notice for performers and company dancers – casuals excluded |
Not a relevant term |
||
30.1—casual definition—performers and company dancers |
Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete the following words from clause 30.1: ‘A casual employee is engaged and paid as such.’ Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
30.1—requirement to inform at engagement of their hours of work |
Such provisions not directly inconsistent but give rise to difficulty relating to interaction between award clause and casual definition in Act [124] Similar provision in Pastoral Award was found not to be necessary to achieve modern awards objective (at [126] of [2021] FWCFB 4144) |
Amend clause 30.1 as follows: 30.1 |
|
30.2—casual loading—performers and company dancers |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
30.3 and 35.2—overtime for casuals – performers and company dancers |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
30.4—payment periods for casuals—performers and company dancers |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
30.5—minimum payment—performers and company dancers |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
31—minimum rates for casuals—performers and company dancers |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
35.3, 35.4(b) and 35.5(c) —penalties for casuals—performers and company dancers |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
36.1 – minimum period of engagement - Musicians |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation required |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
39.1—casual definition—Musicians |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 39.1 |
|
40.3 and 40.6(b) —casual loading—Musicians |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
44—overtime for casuals—Musicians |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
45.2—requirement to inform at engagement—Striptease artists |
Not inconsistent (at [121] of [2021] FWCFB 4144 |
No variation necessary |
|
45.2—penalty rates—Striptease artists |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
47.6—casual definition—Striptease artists |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 47.6 |
|
48.3—minimum payment—Striptease artists |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation required |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
48.4—maximum shift length—Striptease artists |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
48.5 and 54.1(d) —overtime for casuals—Striptease artists |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
48.6 – payment periods for casuals – Striptease artists |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
48.7—casual agency employees—Striptease artists |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
53.1—breaks—Striptease artists |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
57.1—casual definition—production and support staff |
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Propose the following wording for 57.1: 57.1 A casual employee may be engaged |
|
57.2—minimum payment on termination—production and support staff |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144)) |
No variation required |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent and nor give rise to uncertainty [185] |
57.3—casual loading—production and support staff |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
61.2(a) —casual ordinary hours—production and support staff |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
61.2(b), (c), (d) and (e) —minimum payment—production and support staff |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation required |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
63.2, 63.3 and 63.4—casual overtime—production and support staff |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
Mannequins and Models Award 2020 MA000117 | |||
Clause |
Provisional view |
Action |
Notes |
2 – definitions of ‘mannequin’ and ‘model’ |
Not relevant terms |
||
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.3—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty (see [185] of [2021] FWCFB 4144)) |
17.4—allowances for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty (see [185] of [2021] FWCFB 4144)) |
18.8—accident pay for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent nor give rise to uncertainty (see [185] of [2021] FWCFB 4144)) |
19.5—Frequency of payment for casual employees |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty (see [163] of [2021] FWCFB 4144)) |
No casual conversion clause |
Add reference to NES casual conversion provisions pursuant to s 157(1) |
Insert new clause 11.5 as follows: 11.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 24—Dispute resolution. |
|
Meat Industry Award 2020 MA000059 | |||
Clause |
Provisional view |
Action |
Notes |
11—daily hire employees Also: clauses 8.1, 8.2, 18.9, 25.1, 26, 28, 35 and 36. |
No provisional view – see [46]-[53] of Statement |
Further submissions invited. |
Issue of daily hire employee category to be considered. |
8.3, 8.4 |
No provisional view – see [54]-[56] of Statement |
Further submissions invited. |
|
12.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 12.1 Insert new definition of ‘casual employee’ in clause 2—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
12.3 and 12.6—minimum engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
|
12.4—employment termination for casual employee at end of each day/shift |
No provisional view – see [57]-[58] of Statement |
Further submissions invited |
|
12.7—casual pay periods |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] Award clause 11.6 at [154] of [2021] FWCFB 4144 |
12.9—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
12.12 and 12.13—casual conversion |
No provisional view about clause 12.12 – see [56]-[59] of Statement. 12.3 is a Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144).
|
Invite further submissions in relation to clause 12.12. Delete clause 12.13.
Insert new clause 12.13 as follows: 12.13 Offers and requests for casual conversion
Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES.
NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 34—Dispute resolution. |
12.12 to be considered with issue of daily hire employment. |
16.4(c)—regular and systematic casual employee |
Definitions of ‘regular and systematic casual employee’ is relevant term –update term - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’. Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
22—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
12.11, 24.3, 31.3—penalty rates for casuals |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
12.1, 23.1, 23.3(e)—shiftwork for casuals |
General term - not inconsistent ([179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
25.1—Casuals excluded from paid annual leave |
Not a relevant term |
||
Mobile Crane Hiring Award 2020 MA000032 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—requirement to inform at engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
9.1—definition of casual employee |
Engaged and paid in accordance with casual clause Similar to ‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 9.1 Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
Ai Group has submitted that this award falls into an ‘other’ category in their submission. |
9.2—casuals entitled to all applicable rates and conditions except annual leave etc |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
9.3—requirement to inform at engagement |
Includes a requirement to inform at engagement of the likely number of hours at clause 9.3(d). Such provisions not directly inconsistent but give rise to difficulty relating to interaction between award clause and casual definition in Act [124] Provisions not necessary to achieve modern awards objective (at [126] of [2021] FWCFB 4144) |
Delete clause 9.3(d) |
|
9.4—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
9.5—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
9.6—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
9.7—casual conversion |
Award-specific casual conversion clause. This clause provides a 6-month qualifying period similar to the Manufacturing award. Replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [249] of [2021] FWCFB 4144) |
Delete clause 9.7 Insert new clause 9.7.as follows: 9.7 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 32—Dispute resolution |
|
19.8—accident pay |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation required |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
24.1(a)—casuals excluded from annual leave |
Not a relevant term |
||
Pest Control Industry Award 2020 MA000097 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—requirement to inform at engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
10.6—part-time employment |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 10.6 Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
This award has two definitions of a casual employee. A residual definition in the part-time clause. The Ai Group made a submission that this award should be added to the residual category. |
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.3—notice of termination |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation required |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
11.4—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.5—casual loading instead of annual leave etc |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.6, 20.2 and 20.7(b)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.8—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.8. Insert new clause 11.8 as follows: 11.8 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 24—Dispute resolution. |
|
Plumbing and Fire Sprinklers Award 2020 MA000036 | |||
Clause |
Provisional view |
Action |
Notes |
12.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144 Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Vary clause 12.1 to provide: 12.1 A casual employee Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
12.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
12.3 and 22.1(a)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
12.4—casual conversion |
Replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [247] of [2021] FWCFB 4144) |
Delete clause 12.4. Insert new clause 12.4.as follows: 12.4 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 32—Dispute resolution. |
|
34.3(e)—casuals excluded from redundancy payment |
Not a relevant term |
||
Professional Employees Award 2020 MA000065 | |||
Clause |
Provisional view |
Action |
Notes |
11.1—definition of casual employee |
‘Engaged as a casual’ definition - not consistent (see [62]-[70] of [2021] FWCFB 4144) Replace definitional element of clause 11.1 with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete the words “An employee may be engaged as a casual and must be paid per hour worked:” at clause 11.1 and replace with “A casual employee must be paid per hour worked:” Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.1(a)-(b) and 11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.4—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.4. Insert new clause 11.4 as follows: 11.4 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 26—Dispute resolution. |
|
Racing Clubs Events Award 2020 MA000013 | |||
Clause |
Provisional view |
Action |
Notes |
10.6—definition of casual |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 10.6 Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
The Ai Group made a submission that this award should be added to the residual category. |
11.2—definition of casual |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1 |
|
11.3(a)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3(b)—casual loading instead of annual leave etc |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.4 and 21.3—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.5—casual pay period |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.6—minimum engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.7 and 11.8—penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.9—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.8 Insert new clause 11.8 as follows: 11.8 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 31—Dispute resolution. |
|
12.1—casual liquor employees defined |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete the words “A casual employee is an employee who is engaged and paid as a casual employee”. Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
12.4—penalty rates—liquor employees |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
12.5—penalty rates—junior liquor employees |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
12.6—supervising allowance |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation required |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
12.7—working shop days |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation required |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
12.8 and 12.9—shift allowance and casual loading |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation required |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
12.10—overtime for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
12.11—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 12.11. Insert new clause 12.11 as follows: 12.11 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 31—Dispute resolution. |
|
15.5—casual required to attend an inquiry—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
16.1—rest breaks for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation required |
This provision provides ‘general terms and conditions of employment of casual employees’ which the FWC held (in priority awards) to be not inconsistent nor give rise to uncertainty [185] |
Registered and Licensed Clubs Award 2020 MA000058 | |||
Clause |
Provisional view |
Action |
Notes |
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3 and 24.2—penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.4—casual pay period |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.6—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.7—casual conversion |
Replace award clause with reference to the NES provisions – the new NES provisions, considered as a whole, more beneficial than the model clause (per reasoning re Manufacturing Award– see [247] of [2021] FWCFB 4144) |
Delete clause 11.7. Insert new clause 11.7 as follows: 11.7 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 34—Dispute resolution. |
|
24.4(a) and (c)—casuals excluded from public holiday pay |
Not a relevant term |
||
Restaurant Industry Award 2020 MA000119 | |||
Clause |
Provisional view |
Action |
Notes |
2—NES definition |
The definition of ‘National Employment Standards’ in clause 2 of the Award which references s.61 of the Act is outdated - see [143] of [2021] FWCFB 4144) |
Insert the following after paragraph (b) in the extract of s.61 of the Act that appears in clause 2 under the definition of ‘National Employment Standards’: “(ba) offers and requests for casual conversion (Division 4A);” |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.4—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5 and 19.5(b)—casual pay period |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.6 and 23.1(c)—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.7—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.7. Insert new clause 11.7 as follows: 11.7 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 34—Dispute resolution. |
|
18.5(c)—regular and systematic employee / long term casual employee |
Definitions of ‘long term casual employee’ and ‘regular and systematic casual employee’ are relevant terms –update terms - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
15.1(e) —casuals excluded from ordinary hours provisions |
Not a relevant term |
No variation necessary |
|
20.1—casuals excluded from annualised salary arrangements |
Not a relevant term |
No variation necessary |
|
24.2(b) & (c), 24.4(b) —penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
25.1—casuals excluded from annual leave provisions |
Not a relevant term |
No variation necessary |
|
Social, Community, Home Care and Disability Services Industry Award 2010 MA000100 | |||
Clause |
Provisional view |
Action |
Notes |
10.1(b)—requirement to inform on engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
10.4(a)—definition of casual employee |
‘Engaged as a casual’ definition - not consistent (see [62]-[70] of [2021] FWCFB 4144)
Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 10.4(a) Insert new definition of ‘casual employee’ in clause 3-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
10.4(b)—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
10.4(c)—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty (see [185] of [2021] FWCFB 4144)) |
10.5—casual conversion clause |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144)
Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 10.5 Insert new clause XX.X as follows: XX.X Offers and requests for casual conversion
Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES.
NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 9—Dispute resolution. |
|
20.4(b)—first aid allowance |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
25.3—rostered days off |
This is not a relevant term |
No variation necessary |
|
25.5(c)—rosters |
This is not a relevant term |
No variation necessary |
|
26.3—Saturday and Sunday work – casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
26.4—weekend penalty rates |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
28.1(b)—overtime rates |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
28.3—rest period after overtime |
This is not a relevant term |
No variation necessary |
|
34.2(c) – (d)—public holiday penalty rates |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
36.1—leave to deal with family and domestic violence |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
36.3(c)—leave to deal with family and domestic violence |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
|
Supported Employment Services Award 2020 MA000103 | |||
Clause |
Provisional view |
Action |
Notes |
11.1—definition of casual employee |
‘Paid by hour’ definition - not consistent (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2 and 11.4—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.6 and 21.1—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.7—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary. |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.8—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.8. Insert new clause 11.8 as follows: 11.8 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 31—Dispute resolution. |
|
23.1(a) and 28.3—casuals excluded from annual leave and public holiday provisions |
Not a relevant term |
No variation necessary. |
|
Surveying Award 2020 MA000066 | |||
Clause |
Provisional view |
Action |
Notes |
11.1—definition of casual employee |
‘Engaged as a casual’ definition – not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1. Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3 and 21.2—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.4—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.5. Insert new clause 11.5 as follows: 11.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 30—Dispute resolution. |
|
21.4(b)—penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
Travelling Shows Award 2020 MA000102 | |||
Clause |
Provisional view |
Action |
Notes |
10.7—definition of casual employee |
‘Residual category’ definition - possible interaction difficulties or uncertainty because of differently-expressed casual definitions (see [76]-[77] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 10.7. Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11—definition of casual employee |
‘Paid by the hour’ definition – not consistent – relevant uncertainty or difficulty exists (see [81]-[84] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11 and propose the following wording for 11.1 11.1 A casual employee must not work Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.2—casual loading |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
11.3—minimum payment |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—ordinary hours for casuals |
General term - not inconsistent – no variation necessary (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.5, 20.1(c) and NOTE in 20.2—overtime for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
11.6—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.6. Insert new clause 11.6 as follows: 11.6 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 30—Dispute resolution. |
|
15.1—breaks for casuals |
General term - not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
17.1(c)—casual pay period |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
21.5 and 27.2—penalty rates for casuals |
General term- not inconsistent (at [179] and [185] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [185] |
Water Industry Award 2020 MA000113 | |||
Clause |
Provisional view |
Action |
Notes |
8.2—requirement to inform on engagement |
Not inconsistent (at [120]-[121] of [2021] FWCFB 4144) |
No variation necessary |
|
11.1—definition of casual employee |
‘Engaged as a casual’ definition –not consistent – relevant uncertainty or difficulty exists (see [69]-[70] of [2021] FWCFB 4144) Replace with reference to s.15A(1) to make consistent or operate effectively (see [105], [106], [110], [111] of [2021] FWCFB 4144) |
Delete clause 11.1 Insert new definition of ‘casual employee’ in clause 2-—Definitions as follows: casual employee has the meaning given by section 15A of the Act. |
|
11.4—minimum engagement |
Not inconsistent (at [163] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [163] |
11.5—casual conversion |
Model clause – not consistent - less beneficial than NES - replace with NES provision to make awards consistent and operate effectively – (see [197]-[202], [211] of [2021] FWCFB 4144) Add note about casual conversion disputes so award operates effectively (see [199], [212], [215] of [2021] FWCFB 4144). |
Delete clause 11.5 Insert new clause XX.X as follows: 11.5 Offers and requests for casual conversion Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 30—Dispute resolution. |
|
15.3(f)—regular and systematic casual in apprentice clause |
Definitions of ‘regular and systematic casual employee’ are relevant terms –update terms - (at [142], [147] and [149] of [2021] FWCFB 4144) |
Delete the term ‘regular and systematic casual employee’ and replace with ‘regular casual employee’ Insert new definition in clause 2: regular casual employee has the meaning given by section 12 of the Act. |
|
18.3—excess travelling time and fares |
This is not a relevant term |
No variation necessary |
|
20.2(f)—casual loading and overtime |
Not inconsistent (at [176] and [178] of [2021] FWCFB 4144) |
No variation necessary |
FWC Full Bench held that it is unnecessary to determine whether such terms are ‘relevant terms’ (in priority awards) as they are not inconsistent and don’t give rise to uncertainty [178] |
20.4(b)—rest period after overtime |
This is not a relevant term |
No variation necessary |
|
1 Discussion Paper, 19 April 2021.
4 [2021] FWCFB 4144 at section 3.
5 [2021] FWCFB 4144 at [81]-[84]
6 [2021] FWCFB 4144 at [60].
7 [2021] FWCFB 4144 at [81]-[84].
8 [2021] FWCFB 4144 at [238].
9 [2021] FWCFB 4144 at [98]