STATEMENT

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

4 yearly review of modern awards – Plain language re-drafting – Clerks—Private Sector Award
(AM2016/15 & AM2014/219)

4 yearly review of modern awards – plain language re-drafting – Clerks – Private Sector Award 2010.

[1] Section 156(2)(a) of the Fair Work Act 2009 requires the Commission to review all modern awards every four years (the Review). As part of the Review the Clerks—Private Sector Award 2010 has been subject to a process of plain language re-drafting.

[2] On 7 July 2017 a revised plain language exposure draft 1 (July revised PLED) was published together with a revised summary of submissions.2 Following a conference on 15 August 20173 interested parties were directed to advise the Commission which items in the summary of submissions were outstanding.4

[3] On 15 September 2017 a conference 5 (September conference) was held to discuss the summary of submissions with the view to resolving outstanding issues. Interested parties confirmed which items had been resolved and which remained outstanding.

[4] The following organisations attended the conference:

•  Australian Industry Group (Ai Group)

•  ABI & NSW Business Chamber (ABI)

•  Australian Services Union (ASU); and

•  Business SA.

[5] Following the September conference submissions were received from Ai Group, Business SA, ABI, the ASU and the Motor Trade Association (MTA) in relation to the outstanding items.

[6] A revised plain language exposure draft 6 was published on 1 December 2017 (the revised PLED) which reflected items resolved at the conference and some preliminary views on other items. References to the revised plain language exposure draft in this Statement are to the revised PLED unless otherwise specified.

Outstanding items

Coverage

[7] There are four outstanding issues relating to the coverage clause following the September conference.

[8] Item 5 relates to clause 4.1 of the revised PLED. Clause 4.1 was updated following discussions at the September conference. 7 Interested parties should review clause 4.1 of the revised PLED and advise whether there is any outstanding issue in respect of item 5 by 4.00 pm, Thursday 15 February 2018. The aspect of item 5 related to the classification structure is set out at [25].

[9] Item 8 relates to the definition of ‘clerical work’ and the effect on the coverage clause. During the September conference the Ai Group noted that there remain a couple of concerns about the definition of ‘clerical work’ re-inserted into the revised PLED. 8 Interested parties should make any final submissions in respect of the definition of clerical work and its interaction with the coverage clause by 4.00 pm, Thursday 15 February 2018.

[10] Item 9 relates to clause 4.4 of the revised PLED and concerns the wording of the exclusion from coverage of employers covered by awards listed in that clause. Ai Group submitted that the list in clause 4.6 of the current award was more general and was not intended to be exhaustive while the equivalent PLED clause excluded only the employers covered by the awards listed. 9

[11] After the September conference a new subclause 4.3(a) was inserted into the revised PLED and the wording of the lead in words at clause 4.4 were amended. Interested parties should advise whether there is any outstanding issue in respect of item 9 by 4.00 pm, Thursday 15 February 2018.

[12] Discussions took place at the September conference regarding the need for clarity (in the context of potentially including an exhaustive list of awards at clause 4.4). 10 Following the September conference the plain language expert inserted the following additional awards into the list at clause 4.4 of the exposure draft to create greater certainty regarding coverage:

•  Aboriginal Community Controlled Health Services Award 2017;

•  Ambulance and Patient Transport Industry Award 2017;

•  Banking, Finance and Insurance Award 2017;

•  Black Coal Mining Industry Award 2017;

•  Gas Industry Award 2017;

•  Labour Market Assistance Industry Award 2017;

•  Local Government Industry Award 2017;

•  Meat Industry Award 2017;

•  Registered and Licensed Clubs Award 2017;

•  State Government Agencies Administration Award 2017;

•  Supported Employment Services Award 2017; and

•  Water Industry Award 2017.

[13] The ASU provided a list of awards that contain clerical classifications or functions in their October submission. 11 The ASU submitted that the following additional awards contain clerical classifications or functions:

•  Aboriginal Community Controlled Health Services Award 2010;

•  Ambulance and Patient Transport Industry Award 2010;

•  Horse and Greyhound Training Award 2010;

•  Hydrocarbons Industry (Upstream) Award 2010;

•  Joinery and Building Trades Award 2010;

•  Labour Market Assistance Industry Award 2010;

•  Meat Industry Award 2010;

•  Oil Refining and Manufacturing Award 2010;

•  Port Authorities Award 2010;

•  Registered and Licensed Clubs Award 2010;

•  Social, Community, Home Care and Disability Services Industry Award 2010;

•  State Government Agencies Administration Award 2010;

•  Supported Employment Services Award 2010;

•  Timber Industry Award 2010;

•  Transport (Cash in Transit) Award 2010; and

•  Wool Storage, Sampling and Testing Award 2010.

[14] A comparison of the awards proposed by the Commission and those provided by the ASU is at Attachment A.

[15] The addition of more awards to clause 4.4 should be weighed against advantages of a more general provision which may accommodate changes in classifications in other awards and may involve broader consultation with parties with interest in other relevant awards. Interested parties are invited to make submissions regarding the amendments to clauses 4.3 and 4.4 and the potential inclusion of the awards listed at Attachment A. Should parties make submissions in support of additional awards being included at clause 4.4, further consultation with parties interested in the relevant awards will occur.

[16] Item 11 relates to the on-hire provisions at clause 4.2 of the revised PLED. Interested parties sought the opportunity to confirm their positions and submissions were received from ABI and the ASU. Clause 4.2 was updated in the revised PLED. Interested parties should advise whether there is any outstanding issue in respect of item 11 by 4.00 pm, Thursday 15 February 2018.

Part-time employment

[17] Item 21 relates to clause 10.2 of the revised PLED. Ai Group opposed inclusion of clause 10.2 on the basis that there is no equivalent clause in the current award, it alters the legal effect of the current award and it may give rise to substantial changes. Clause 10.2 prompted discussion regarding how and/or whether some entitlements under the current award apply on a pro rata basis.

[18] The Commission proposed that, based on normal principles of interpretation, the award would be read as applying to everybody covered by it unless it specifically provided otherwise, and that on this basis the clause may be deleted. 12 Ai Group, Business SA and ABI support the deletion of clause 10.2.13 The ASU submit that clause 10.2 should be retained on the basis that it succinctly explains how the award applies to part-time employees.14

[19] The Commission has reached a provisional view that clause 10.2 should be deleted as reflected in the revised PLED.

Casual employment

[20] Item 24 relates to clause 11.1 (casual employment) of the revised PLED. Business SA and Ai Group submitted that clause 11.1 of the PLED is a substantial change from clause 12.1 of the current award. 15 The ASU supports retention of the July revised PLED clause and suggested an amendment to address concerns of other parties.16 On 5 July 2017 a decision was issued in the Part-time and Casual employment common issue17 which considered the definition of a casual employee. Paragraph [85] of that decision is as follows:

‘[85] The above analysis demonstrates that, beyond the basic proposition that a casual employee will almost always be an employee engaged and paid as such, it is difficult to assign any consistent legal or practical criteria to the concept of casual employment. From a contractual perspective, a casual employee may be engaged under a succession of hourly or daily fixed-term contracts, or under a succession of fixed term contracts for a longer period, or under a single ongoing contract with no fixed term but terminable at short notice. In practical terms, casual employment may be used for the performance of short-term, intermittent and irregular work at one end of the range, but at the other end it may be used for long term work with regular, rostered hours. In respect of the modern award context with which we are concerned, casual employment has under most modern awards evolved into an alternative payment and entitlement system available at the election of the employer upon engagement (subject to the operation of any casual conversion provision which may currently exist in the modern award).’

[21] Clause 11.1 of the PLED was amended having regard to the extract of the Part-time and Casual employment decision above. The Commission’s provisional view about clause 11.1 was published in the revised PLED as follows:

‘An employee is a casual employee if they are engaged as a casual employee.’

[22] Interested parties should advise whether there is any outstanding issue in respect of item 11 by 4.00 pm, Thursday 15 February 2018.

Classifications and Schedule A

[23] Item 146 relates to Schedule A (Classification structure and definitions) of the revised PLED. Following the September conference Schedule A was reverted to the equivalent classification structure in the current award, subject to some minor plain language amendments.

[24] Interested parties should review Schedule A in the revised PLED and make any final submissions in relation to Schedule A by 4.00 pm, Thursday 15 February 2018.

[25] Item 5 (in part) relates to clause 4.1 (Coverage) and item 26 relates to clause 12.2 (Classifications). The parties reserved their positions in relation to clauses 4.1 and 12.2 pending the outcome of concerns raised in relation to Schedule A. 18 In the revised PLED Schedule A was amended to reflect the existing classification schedule following the September conference.19. Interested parties should make any further submissions in respect of clauses 4.1 or 12.2 of the revised PLED by 4.00 pm, Thursday 15 February 2018.

Ordinary hours of work

[26] Items 27 and 35 – 40 relate to clause 13 (ordinary hours of work) of the revised PLED.

[27] In relation to item 27, ABI noted that its concerns about clause 13.1 were resolved in the July revised PLED. 20 Ai Group reserved their position pending their concerns in relation to clause 27 of Part 6—Shiftwork.21 This item is dealt with at [79].

[28] Items 35 – 37 were dealt with together at the September conference. Items 35 – 37 relate to clause 13.5 of the PLED (setting ordinary hours a different award) which reflects the second sentence of the current award clause 25.1(b). Clause 25.1(b) is as follows:

‘(b) The ordinary hours of work may be worked from 7.00 am to 7.00 pm Monday to Friday and from 7.00 am to 12.30 pm Saturday. Provided that where an employee works in association with other classes of employees who work ordinary hours outside the spread prescribed by this clause, the hours during which ordinary hours may be worked are as prescribed by the modern award applying to the majority of the employees in the workplace.’

[29] In the July revised PLED the equivalent provision was at clause 13.7 (now 13.5) as follows:

‘Setting ordinary hours by a different award

(a) Clause 13.7 applies if each of the following applies:

(i) one or more employees covered by this award work in association with other employees covered by a different modern award; and

(ii) the majority of employees at the workplace are covered by a modern award that sets a spread of hours other than that set out in clause 13.5.

(b) The employer may direct employees in paragraph (a)(i) to work the spread of ordinary hours in the modern award that covers the majority of employees at the workplace.’

[30] During the September conference, the following amendment to clause 13.5(b) was proposed to address concerns of interested parties by removing the reference to ‘the majority’:

‘the other employees are covered by a different modern award that sets a spread of hours other than set out in clause 13.5…’ 22

[31] Business SA and ABI did not oppose the wording at paragraph [30]. 23 The ASU submit that removal of the word ‘majority’ would substantially change the current operation of clause 25.1(b) of the current award. The ASU submits that without reference to the award that covers the majority of employees, the employer covered by, for example, 3 modern awards, would have a unilateral discretion to determine the spread of hours from any one of those modern awards.24 The ASU submits that the July revised PLED wording should be maintained.

[32] Ai Group oppose the amendment proposed at [30] and press for the amendment they proposed in their submission of 28 February 2017, 25 which is as follows:

‘13.7 Setting ordinary hours by a different award

(a) Clause 13.7 applies to an employee who works in association with other employees who work ordinary hours outside the spread of hours prescribed by clause 13.5.

(b) The hours during which ordinary hours may be worked by the employee are as prescribed by the modern award applying to the majority of employees in the workplace.’

[33] On 1 December 2017 we published an amended clause 13.5 in the revised PLED as follows:

‘13.5 Setting ordinary hours by a different award

(a) Clause 13.5 applies if each of the following applies:

(i) one or more employees covered by this award work in association with other employees who are covered by a different modern award; and

(ii) that different modern award sets a spread of hours other than that set out in clause 13.3; and

(iii) those other employees work ordinary hours outside the spread of hours set out in clause 13.3.

(b) The employer may direct the employees mentioned in paragraph (a)(i) who are covered by this award to work the spread of ordinary hours in the modern award that covers the majority of employees at the workplace.’

[34] The Commission’s provisional view is to adopt clause 13.5 as set out in paragraph [33]. Interested parties are invited to make any final submissions on clause 13.5 of the revised PLED by 4.00 pm, Thursday 15 February 2018.

[35] Item 38 relates to the example below clause 13.5 of the revised PLED in relation to setting ordinary hours by a different award. Ai Group sought the opportunity to review the example after the September conference to ensure that the example accurately illustrated the substantive clause.

[36] The ASU does not oppose inclusion of the example as it appeared in the July revised PLED. 26 The Ai Group pressed for amendments to the example in accordance with paragraph 187 of their 28 February 2017 submission (reflecting the Ai Group’s position on clause 13.5).

[37] On 1 December 2017, we published a revised PLED containing an amendment to the example as follows:

‘EXAMPLE: An employee covered by this award works in association with employees who are covered by an award that sets ordinary hours of work between 5.30 am and 6.30 pm Monday to Friday. The award that sets ordinary hours of work between 5.30 am and 6.30 pm Monday to Friday covers the majority of employees at the workplace. The employer may direct the employee covered by this award to work ordinary hours between 5.30 am and 6.30 pm Monday to Friday (rather than the spread set out in clause 13.3).’

[38] The Commission’s provisional view is to adopt the example as set out in paragraph [36]. Interested parties are invited to make any final submissions on clause 13.5 of the revised PLED by 4.00 pm, Thursday 15 February 2018.

[39] Items 39 and 40 relate to clause 13.6 of the revised PLED. The Commission proposed an amendment to clause 13.6 at during the September conference. 27. Business SA, ABI and the ASU support the amendment proposed by the Commission.28 The Ai Group also proposed an amendment having regard to paragraph 382 of the transcript.29

[40] On 1 December 2017, we published a revised PLED which amended clause 13.6 as follows:

‘13.6 Ordinary hours of work are to be worked:

(a) continuously, except for rest breaks and meal breaks as specified in clause 15—Breaks (employees other than shiftworkers); and

(b) at the discretion of the employer in accordance with this award.’

[41] The Commission’s provisional view is to adopt clause 13.6 as set out in paragraph [40]. Interested parties are invited to make any final submissions on clause 13.6 of the revised PLED by 4.00 pm, Thursday 15 February 2018.

Rostered days off

[42] Items 42 and 44 relate to rostered days off (clauses 14.2 and 14.6(d) of the revised PLED). Item 42 relates to rostered days off for non-shiftworkers. Following the September conference, clause 14.2 was amended to reflect discussions at the conference. The Commission’s provisional view is to adopt clause 14.2 as amended in the revised PLED. Interested parties are invited to make any final submissions on clause 14.2 of the revised PLED by 4.00 pm, Thursday 15 February 2018.

[43] Item 44 relates to clause 14.6 of the July revised PLED. At the September conference parties were invited to make submissions about how the July revised PLED could be modified to address concerns that the drafting constituted a substantive change. 30

[44] Ai Group submitted that the July revised PLED clause ensured that overtime penalties would not accrue but clause 25.4(d) of the current award provided that no penalties are to be paid. Therefore, the July revised PLED drafting may change the legal effect of the award. 31 No other submissions were received.

[45] In the revised PLED, clause 14.6 was amended as follows:

’14.6 Banking rostered days off

(a) The employer and an employee may agree to an arrangement under which the employee works on their normal rostered days off and accumulates up to 5 banked rostered days off that may be taken at times that are convenient to both the employer and employee.

(b) The employer must keep a record of the employee’s banked rostered days off.

(c) The employee must give at least 5 days’ notice before taking a banked rostered day off.

(d) No payments or penalty payments are to be made to an employee for working more than the average number of ordinary hours per week as a result of working on a rostered day off under the banking system.

(e) No reduction in payment is to be made for an employee working less than the average number of ordinary hours per week as a result of taking banked rostered days off but the employee must be paid according to the average pay system during any week the employee elects to take a banked rostered day off.

(f) On the termination of an employee’s employment, the employer must pay an employee for any banked rostered day off that has not been taken an amount equal to 20% of the employee’s average weekly wages over the period of 6 months immediately before the termination.’

[46] The Commission’s provisional view is to adopt clause 13.6 as set out in paragraph [45]. Interested parties are invited to make any final submissions on clause 14.6 of the revised PLED by 4.00 pm, Thursday 15 February 2018.

Breaks

[47] Item 54 relates to the penalty payable under clause 15.4 of the revised PLED when an employee is required to work through their meal break. Ai Group sought to amend the wording to clarify when the higher rate is payable. 32 Clause 15.4 was amended in the revised PLED. Interested parties are invited to make any final submissions about clause 15.4 of the revised PLED by 4.00 pm, Thursday 15 February 2018.

Transport reimbursement for shiftwork

[48] Items 136 to 139 relate to clause 21.8 (transport reimbursement for shiftwork) of the revised PLED. A decision was made in relation to the equivalent clause in the Pharmacy Industry Award 2010 to vary the clause to address an anomaly in the 2010 clause. 33 At the September conference the Commission indicated a provisional view to adopt clause 21.8 of the July revised PLED unless a party could identify a critical distinction between the terms of the Clerks award and the Pharmacy award that would warrant a difference approach.34

[49] No party made any submission after the conference in relation to clause 21.8. The Commission intends to adopt clause 21.8 in the terms of the revised PLED.

Penalties – Sunday rates

[50] Item 78 relates to subclauses 23.3(a) and (b) (Sunday penalty rates) of the revised PLED. In their 28 February 2017 submission, Ai Group submitted that the plain language exposure draft removes the Sunday rate of pay and sought the inclusion of a new clause 23.3 providing for a 200% penalty rate payable for ordinary hours of work on a Sunday. 35 A clause was inserted into the July revised PLED in response to Ai Group’s submission. Clauses 27.2(b) and (c) of the current award provide as follows:

‘(b) All work done on a Sunday must be paid for at the rate of double time.

(c) An employee required to work on a Sunday is entitled to not less than four hours pay at penalty rates provided the employee is available for work for four hours’

[51] MTA submitted that subclauses 23.3(a) and (b) of the plain language exposure draft were incorrectly drafted. MTA submit that, subject to the exception at clause 25.1(b) of the current award, all work performed on a Sunday is overtime as the ordinary hours clause does not provide for ordinary hours of work to be worked on a Sunday. 36

[52] Parties in attendance at the September conference indicated that clauses 23.3(a) and (b) as amended in the July revised PLED resolved concerns raised by the parties. 37

[53] Clause 27.2(b) of the current award applies to ‘all work done on a Sunday’. ‘All work’ in the current award covers both ordinary hours and overtime hours. The exception at clause 25.1(b) of the current award and clause 13.5 of the revised PLED allows ordinary hours to be worked in accordance with the spread of ordinary hours in another award subject to the requirements of that clause. This could include ordinary hours on a Sunday if ordinary hours can be worked on Sunday under the other award. If ordinary hours are worked on a Sunday in accordance with the spread of hours in another award then the rates in clause 23.3 of the revised PLED would apply.

[54] The Commission has reached a provisional view to adopt subclauses 23.3(a) and (b) as they appear in the revised PLED and agreed by other interested parties.

Overtime

[55] Item 92 relates to clause 24.4(b) (overtime) of the revised PLED. The words ‘ready, willing and available’ in the current award have been substituted with the word ‘available’ in the revised PLED. Discussion took place during the September conference about the words ‘willing’ and ‘available’. 38 The Commission noted that an employee cannot be available if they are not willing. Ai Group noted that that interpretation may resolve their concern. Ai Group did not make any submission in respect of clause 24.4(b) in their October submission. The Commission has formed the provisional view that item 92 is resolved. Interested parties should advise whether there is any outstanding issue in respect of item 92 by 4.00 pm, Thursday 15 February 2018.

Rest period after working overtime

[56] Items 96 and 98 to 100 relate to the rest period after overtime clause for employees other than shiftworkers. As a result of discussions during the September conference clauses 25.3 and 25.4 were amended in the revised PLED.

[57] Interested parties are invited to review clauses 25.3 and 25.4 and make any final submissions in relation to items 96 and 98 to 100 by 4.00 pm, Thursday 15 February 2018.

Substitution of public holidays

[58] Item 145 relates to clause 37.3 of the revised PLED. Ai Group notified the Commission that the amendment to clause 7.2 in the July revised PLED may resolve its concern. Ai Group took the item on notice. Ai Group submitted that clause 31.2 of the current award enables a public holiday to be substituted ‘by agreement’ and this wording does not preclude agreement between an individual or the majority of employees. Ai Group submit that the variations at clauses 7.2 and 37.2 have the effect of requiring that a public holiday may be substituted by agreement with the majority of employees and this alters the legal effect. Ai Group submits that both clauses should be amended to ‘agreement with an individual or the majority’. 39

[59] Interested parties are invited to make any final submissions in relation to item 145 by 4.00 pm, Thursday 15 February 2018.

Schedule B—Summary of hourly rates of pay

[60] Item 148 relates to the Note under the heading of Schedule B (Summary of hourly rates of pay) of the revised PLED. It was noted during discussions at the September conference that the entitlement to the rates in Schedule B arose under the award rather than the Schedule. Ai Group submits that the note should be updated to reflect this. 40

[61] The plain language expert proposed the following amendment to the Note under Schedule B to address the parties’ concerns:

‘NOTE: Employers who pay wages in accordance with this schedule satisfy their obligations under the award to pay wages for hours worked.’

[62] The Commission notes that the original note under the Schedule B clause title was inserted into all exposure drafts in [2015] FWCFB 4658. 41 This is an issue that affects the majority of exposure drafts and may require broader consultation. Interested parties are invited to make submissions in relation to item 148 and the note set out at paragraph [61] by 4.00 pm, Thursday 15 February 2018.

Definition of minimum hourly rate

[63] Item 155 relates to the definition of ‘minimum hourly rate’ in clause 2 of the revised PLED. Ai Group submit that ‘minimum hourly rate’ is defined as the minimum hourly rate prescribed at clause 16, and that clause 16 sets out only the adult rate and the junior rate. 42 Ai Group submit that the equivalent clause of the current award also used to make reference to the supported wage system and the national training wage but it no longer does as these are now separate clauses. The Ai Group submit that it is not clear how that would apply to an employee who is being paid according to the supported wage system or the national training wage and it is arguably these employees may be paid at the higher rate.43

[64] The Ai Group proposed the following definition of minimum hourly rate:

‘Minimum hourly rate means the minimum hourly rate prescribed by this award’. 44

[65] Ai Group submit that this amendment will make clear that the minimum hourly rate does not pick up over-award payments and it’s simply the relevant minimum appropriate rate. 45

[66] The Commission indicated that it would give further consideration to solving the issue raised by Ai Group. The plain language expert proposed an amended definition of minimum hourly rate was published in the revised PLED of 1 December 2017 in the following terms:

‘minimum hourly rate, in relation to an employee, means the minimum hourly rate to which the employee is entitled under this award.’

[67] This issue may affect a number of exposure drafts and may require broader consultation. Interested parties are invited to make any final submissions in relation to the definition suggested at paragraph [66] item 148 by 4.00 pm, Thursday 15 February 2018.

Items related to the format and style of tables

[68] Items 4, 48, 49, 57, 59, 63, 65, 91 (in part), 110, 121 (in part), and 148 relate to the format and preambles of tables in the revised PLED. Ai Group submit that the column numbers (for example column 1, column 2) serve no purpose and should be deleted. Ai Group also submits that tables should not appear in the definitions clause where the table is not referred to elsewhere in the award. Ai Group note that Table 3 is referenced in the body of the award but reference to the table rather than the clause makes the document more difficult to navigate.

[69] In proceedings relating to the plain language redraft of the Pharmacy Industry Award 2010, the Commission considered the format and preamble of tables used in the plain language exposure draft (including the use column headings). The Commission determined that tables (in the form of containing ‘column’ and content headings) and lead in clauses make an award simpler, easier to understand and add to certainty and clarity. 46 Further, the plain language drafting of modern awards guidelines provide that tables should be numbered, labelled and given a unique number to assist with referencing.47

[70] The format and style of tables used in the plain language exposure draft was also the subject of user testing conducted as part of the plain language modern awards pilot. It was reported that users appreciated greater use of tables, finding that the format made awards simpler and easier to understand. 48

[71] The Commission is not persuaded to change the format or style of tables in plain language exposure drafts. We consider items 4, 48, 49, 59, 63, 65, 91 (in part), 110, 121 (in part) and 148 to be resolved.

[72] Ai Group also raised an issue at item 57 regarding the lead in words to Table 3. Following the September conference, the lead in words to Table 3 were amended as follows:

‘16.1 An employer must pay an employee who is 21 years of age or older the rate applicable to the employee classification specified in column 1 of Table 3—minimum adult rates for ordinary hours of work as follows:

(a) for a full-time employee the minimum weekly rate specified in column 2; or

(b) for a part-time employee, the minimum hourly rate specified in column 3.’

[73] Item 64 relates to clause 16.4 (junior rates) of the revised PLED. Ai Group raised concerns over the lead in words for Table 4. This item was not discussed in detail in the September conference.

[74] The Commission has reached a provisional view to adopt the lead in words to Table 3 at paragraph [72]. Interested parties are invited to make any final submissions in relation to the lead in words to Table 3 and Table 4 by 4.00 pm, Thursday 15 February 2018.

Shiftwork and items pending determination of shiftwork concerns

[75] Items 105 and 106 concern the definition of shiftwork at clause 27 of the revised PLED. Ai Group sought to amend the wording of clause 27.1 to clarify the application of Part 6—Shiftwork.

[76] At the September conference, discussions were held in relation to the interaction between the facilitative clause 13.4 of the revised PLED, which allows the spread of hours to be altered by up to one hour at either end by individual or majority agreement, and clause 27.1. 49 Ai group raised concern that if an employee, subject to the facilitative provision in clause 13.4, worked their ordinary hours under clause 13.3 until 8.00 pm on a week night, the employee may then be covered by clause 27.1 as drafted in the July revised PLED.50 A similar issue may also arise in relation to clause 13.5 of the revised PLED.

[77] In the revised PLED published on 1 December 2017 clause 27.1 was amended as follows:

‘27.1 Part 6 applies to employees who are required to work their ordinary hours on any of the following shifts:

(a) shift finishing after 7.00 pm and at or before midnight (afternoon shift);

(b) a shift finishing after midnight, and at or before 7.00 am (night shift);

(c) a night shift which does not rotate with another shift or shifts or day work and which continues for a period of 4 consecutive weeks or longer (permanent night shift).’

[78] Interested parties are invited to review the amended clause 27.1 in the revised PLED in light of concerns raised by Ai Group. Interested parties are invited to make further submissions in relation to clause 27.1 by 4.00 pm, Thursday 15 February 2018.

[79] During the September conference parties reserved their positions on a number of items related to shiftwork pending the outcome of the Ai Group concerns about clause 27 (as set out at [75] to [77]). The items are 3, 27, 45, 77, 84 and 110 (in part). Interested parties should review these items in respect of the amendment proposed at clause 27.1 of the revised PLED. Parties should advise whether there is any outstanding issue in respect of items are 3, 27, 45, 77, 84 and 110 (in part) by 4.00 pm, Thursday 15 February 2018.

Items pending determination of other 4 yearly review proceedings

[80] Item 31 regarding spread of hours affects a number of awards and has been deferred until the conclusion of the award stage of the review. 51 Items 107 and 109 relate to the equivalent clause in the Shiftwork part. These items are also deferred until the conclusion of the award stage of the Review.

[81] Item 70 relates to annualised salaries. The ASU reserved their position in relation to this item and it will be determined after determination of the annualised salaries full bench. 52

Resolved items

[82] Items have been categorised as resolved where there was unanimous agreement that an item was agreed and where items were not pressed or were withdrawn at conference. Items have also been considered resolved where amendments were minor (such as cross references or minor amendments to text) and where no requests to review or reserve positions were made during conference and where no further submissions were received about the item following the conference.

[83] The following items are resolved:

•  1, 2, 6, 7, 10 – 20, 22, 23, 24, 25, 28, 29, 30, 32, 33, 34, 41, 43, 46, 47, 48, 49, 50, 51, 52, 53, 55, 56, 57, 58, 60, 61, 62, 66, 67, 68, 69, 72, 73, 74, 75, 76, 78, 79, 80, 81, 82, 83, 86, 87, 88, 89, 90, 91, 93, 94, 95, 97, 101, 102, 103, 104, 108, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 140, 141, 142, 143, 144, 147, 149, 150, 151, 152, 153, 154.

Next steps

[84] Interested parties are invited to make submissions in respect of the items at paragraphs [8], [9], [15], [16], [22], [24], [25], [34], [38], [41], [46], [47], [55], [57], [59], [62], [67], [74], [78] and [79] by 4.00 pm, Thursday 15 February 2018.

[85] Parties should make any other further comment on the revised PLED by 4.00 pm, Thursday 15 February 2018. We intend to deal with all outstanding issues on the basis of written submissions, unless a request for further conference is made by any of the parties.

[86] The Commission directs as follows:

1. All interested parties will file written submissions by no later than 4.00pm on 4.00 pm, Thursday 15 February 2018.

2. All material should be sent in a Word document to [email protected]

3. Liberty to apply.

VICE PRESIDENT

ATTACHMENT A (awards with an * do not appear in the current award)

 1   Exposure draft – Clerks Award – revised 7 July 2017.

 2   Summary of submissions – revised 7 July 2017.

 3   Transcript 15 August 2017.

 4   Direction 17 August 2017.

 5   Transcript 15 September 2017.

 6   Exposure draft – Clerks Award – revised 1 December 2017.

 7   Transcript 15 September 2017, PN 108.

 8   Transcript 15 September 2017, PN 147.

 9   Transcript 15d September 2017, PN 150.

 10   Transcript 15 September 2017, PN149-155.

 11   ASU Submission, 16 October 2017, paragraph 1.

 12   Transcript 15 September 2017, PN 260.

 13   Transcript 15 September 2017, PN 260; Business SA submission, 26 September 2017, paragraph 1; ABI submission, 28 September 2017, page 1.

 14   ASU Submission, 16 October 2017, paragraph 3.

 15   Ai Group submission, 28 February 2017, paragraphs 123 – 131; Business SA submission, 28 February 2017, paragraph 5.1.

 16   ASU Submission, 16 October 2017, paragraph 4.

 17   [2017] FWCFB 3541 at [85].

 18   Transcript 15 September 2017, PNs 117 – 131, 309.

 19   Transcript 15 September 2017, PN 820.

 20   Transcript 15 September 2017, PN311.

 21   Transcript 15 September 2017, PN313.

 22   Transcript 15 September 2017, PN351.

 23   Business SA submission, 26 September 2017, paragraph 2; ABI submission, 28 September 2017, page 1.

 24   ASU Submission, 16 October 2017, paragraph 5.

 25   Ai Group submission, 28 February 2017, Paragraphs, paragraph 186.

 26   ASU Submission, 16 October 2017, paragraph 6.

 27   Transcript 15 September 2017, PN382.

 28   Business SA submission, 26 September 2017, paragraph 3; ABI submission, 28 September 2017, page 1, ASU Submission, 16 October 2017, paragraph 7.

 29   Ai Group Submission, 16 October 2017, page 3.

 30   Transcript 15 September 2017, PN426.

 31   Ai Group Submission, 16 October 2017, pages 2–3.

 32   Ai Group submission, 28 February 2017, Paragraphs 236 – 240

 33   [2017] FWCFB 1612 at [76] – [77].

 34   Transcript 15 September 2017, PNs 755 – 757.

 35   Ai Group submission, 28 February 2017, Paragraphs 316 – 320.

 36   MTA submission, 18 October 2017, page 2.

 37   Transcript 15 September 2017, PN 45.

 38   Transcript 15 September 2017, PNs 520 – 527.

 39   Ai Group Submission, 16 October 2017, page 4.

 40   Transcript 15 September 2017, PN 825.

 41   [2015] FWCFB 4658 at [63].

 42   Transcript 15 September 2017, PN 859.

 43   Transcript 15 September 2017, PN 860.

 44   Transcript 15 September 2017, PN 870.

 45   Transcript 15 September 2017, PN 870.

 46   [2017] FWCFB 344 at para [60]-[62].

 47   Fair Work Commission Guidelines – Plain language drafting of modern awards at 10.3-10.4.

 48   Report from Plain Language modern award pilot – April 2016 at [81].

 49   Transcript 15 September 2017, PN 596.

 50   Transcript 15 September 2017, PN 599 – 605

 51   [2016] FWCFB 7254 at [177] – [190]

 52   Transcript 15 September 2017, PNS 489 – 491.

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