[2018] FWCFB 6368
FAIR WORK COMMISSION

DECISION


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

4 yearly review of modern awards – Award stage – Group 3
(AM2014/223 and others)

JUSTICE ROSS, PRESIDENT
SENIOR DEPUTY PRESIDENT HAMBERGER
DEPUTY PRESIDENT CLANCY
COMMISSIONER JOHNS

MELBOURNE, 15 OCTOBER 2018

4 yearly review of modern awards – award stage – exposure drafts – technical and drafting issues – Group 3 awards – outstanding issues.

CONTENTS

Paragraph

1. Introduction

[1]

2. Review of Group 3 awards

[6]

2.1 Contract Call Centres

[6]

2.2 Educational Services (Post-Secondary Education) Award 2010

[11]

2.3 Educational Services (Schools) General Staff Award 2010

[17]

2.5 Horticulture Award 2010

[18]

2.8 Pastoral Award 2010

[30]

2.9 Sugar Industry Award 2010

[87]

2.10 Silviculture Award 2010

[130]

2.11 Wine Industry Award 2010

[144]

2.18 Higher Education Industry – Academic Staff – Award 2010

[154]

2.21 Ports Harbours and Enclosed Water Award 2010

[160]

3. Next Steps

[176]

1. Introduction

[1] Section 156 of the Fair Work Act 2009 (the Act) requires the Fair Work Commission (the Commission) to review all modern awards every four years (the Review). In the Award stage of the Review the 122 modern awards have been divided into 4 groups. The 33 awards allocated to Group 3 are listed at Attachment A to this decision.

[2] This decision deals with a small number of outstanding technical and drafting issues arising out of the review of the awards in Group 3 and should be read in conjunction with the decisions issued on 6 July 2017 1 (the July 2017 decision), 30 October 20172 (the October 2017 decision) and 13 March 20183 (the March 2018 decision), which also deal with the Group 3 awards.

[3] In addition to the July 2017, October 2017 and March 2018 decisions, this decision should be read in conjunction with earlier decisions and statements concerning the Review, in particular the decisions of 23 December 2014 (the December 2014 decision), 13 July 2015 (the July 2015 decision) and the 30 September 2015 (the September 2015 decision), in which the Commission dealt with a number of general drafting and technical issues common to multiple exposure drafts.

[4] Following the March 2018 decision, a number of group 3 awards no longer have any outstanding technical and drafting issues which need to be addressed. These awards are

Banking, Finance and Insurance Award 2010

Business Equipment Award 2010

Clerks - Private Sector Award 2010

Coal Export Terminals Award 2010

Commercial Sales Award 2010

Dredging Industry Award 2010

Electrical Power Industry Award 2010

Fitness Industry Award 2010

Gardening and Landscaping Services Award 2010

Higher Education Industry-General Staff-Award 2010

Labour Market Assistance Industry Award 2010

Legal Services Award 2010

Local Government Industry Award 2010

Marine Towage Award 2010

Market and Social Research Award 2010

Miscellaneous Award 2010

Nursery Award 2010

Port Authorities Award 2010

Real Estate Industry Award 2010

Seagoing Industry Award 2010

Sporting Organisations Award 2010

State Government Agencies Award 2010

Telecommunications Services Award 2010

[5] The remaining Group 3 awards (listed below) have a small number outstanding technical and drafting issues, and are dealt with in this decision:

Contract Call Centres Award 2010

Educational Services (Post-Secondary Education) Award 2010

Educational Services (Schools) General Staff Award 2010

Higher Education Industry – Academic Staff – Award 2010

Horticulture Award 2010

Pastoral Award 2010

Ports Harbours and Enclosed Water Award 2010

Silviculture Award 2010

Sugar Industry Award 2010

Wine Industry Award 2010

2. Review of Group 3 Awards

[6] In the March 2018 decision we stated there were no outstanding issues in relation to this award. On 22 August 2018 the Commission received a submission from the Community and Public Sector Union (CPSU) seeking to have a determination issued to give effect to our decision our July 2017 decision 4 regarding classification changes in the award.

[7] The July 2017 decision states:

‘[47] The only outstanding matter following the publication of the 16 August 2016 draft is the proposal to vary the classification structure in this Award to clarify the classification level of employees providing and developing on the job training. The relevant parties have held discussions and following a conference held on 2 September 2016 Ai Group and the CPSU reached an agreement on the appropriate amendments to the classification structure. The agreed proposal was distributed with a report published by Commissioner Roe on 19 May 2017 and a corrected version was published on 30 May 2017. In that report the following directions were published.

“Any interested party who wishes to make a submission about this proposal must do so by no later than 2 June 2017. It is proposed to deal with this matter on the basis of the submissions received by 2 June 2017. If there is any objection to this proposed course of action it should be received by no later than 2 June 2017.”

[48] No objections or submissions were received. The first change proposed is to insert an additional aspect of the definition for a “Principal Customer Contact Specialist” as follows:

“An employee at this level may provide on the job training instead of customer contact and assist with developing training programs where they are not receiving calls.”

[49] The second change proposed is to insert an additional indicative task for the “Customer Contact Team Leader” definition as follows:

“Develop and lead on the job training”

[50] We agree that it is both necessary and appropriate to vary the classification definitions to include on the job training. A revised exposure draft will be published to incorporate this variation.’

[8] A revised version of the exposure draft reflecting the changes was published on 19 July 2017.

[9] In their submission the CPSU state that no determination was made to change the current award and seek that a determination be issued. The CPSU submission also states that the ASU and Ai Group have been consulted and do not oppose to the request.

[10] We agree with the submission of the CPSU, and a determination varying the current award will be issued shortly.

[11] Two outstanding items remain in relation to the Educational Services (Post-Secondary Education) Award 2010 (the Post-Secondary Award).

Item 25 – Public Holiday substitution

[12] In the March 2018 decision we dealt with an issue relating to public holidays substitution by majority agreement (see paras [12] to [31]). The NTEU submitted that clause 20.2 of the revised exposure draft (“Substitution of public holidays by agreement”) is inconsistent with the NES. 5

[13] In our March 2018 decision we noted that the issue raised by the NTEU also arises in a number of other modern awards, including the:

•  General Retail Industry Award 2010;

•  Manufacturing and Associated Industries and Occupations Award 2010; and

•  Mining Industry Award 2010.

[14] As the determination of the issue in the context of this award may have implications for other awards we had decided not to deal with the issue at the time of the March 2018 decision. On 15 March 2018 a Statement was issued by the President referring the issue of public holiday substitution, either by majority agreement, or unilaterally by an employer, to the Plain Language Full Bench for a broader review. 6 On 27 April 2018 Vice President Hatcher issued directions inviting interested parties to make submissions on the issue.7 As such, this issue will not be dealt with any further in the award stage of the review and is currently before the Plain Language Bench for determination.

Item 16 – expense related allowances – meal allowance general staff

[15] In the March 2018 decision we asked interested parties to comment on our provisional view that clause 11.2(c)(ii) of the exposure draft be amended as follows (additional words bolded for clarity):

‘Where overtime worked exceeds four hours, or exceeds nine hours if worked on a Saturday or Sunday, a further meal allowance of $12.12 will be paid.’

[16] One submission was received, from ABI and the NSW Business Chamber (ABI). ABI agrees with the Commission’s provisional view that the Exposure Draft be amended in the manner proposed. 8 We confirm our provisional view. Clause 11.2(c)(ii) of the exposure draft will be updated accordingly.

[17] Following the March 2018 decision there remained three outstanding issues in relation to this award. The March 2018 decision noted that a conference would be convened by Commissioner Johns in relation to one outstanding item. The remaining two outstanding items were finalised in a Statement issued on 22 May 2018. 9 The exposure draft will be updated and republished according to the resolutions outlined in that Statement.

[18] After the March 2018 decision, three technical and drafting matters remain outstanding in the Horticulture Award. Interested parties were invited to provide further submissions on the outstanding issues. Submissions were received from ABI, the Australian Workers’ Union (AWU), and the National Farmers’ Federation (NFF).

Items 15 and 47 – Casuals

[19] In the March 2018 decision, we dealt with an issue about whether shiftwork provisions in clause 22.2 of the current award apply to casual employees. At para [121] of that decision we decided to amend the exposure draft by moving clause 14 to appear at clause 8.2, which is consistent with the NFF’s position that casuals cannot be engaged as shiftworkers under the current provisions of the award.

[20] The March 2018 decision invited the AWU to advise if it wished to pursue the issue as a substantive variation.

[21] The AWU provided a further submission advising that it “appears this issue will shortly be resolved via amendments arising from the Casual and Part-time Employment Full Bench proceedings. In the unlikely event that this does not eventuate, the AWU reserves its right to request that this Full Bench deals with the issue. The AWU will urgently inform the Commission in that event”. 10

[22] Since the March 2018 decision was issued, two further decisions have been issued by the Casual and Part-time Employment Full Bench, one on 9 August 2018 and one on 21 September 2018. 11 However, no final determination has been made by that Full Bench in relation to the Horticulture Award. The AWU can request that this matter be reopened in the event that it is not dealt with by the Casual and Part-time Employment Full Bench.

Item 27 – Pieceworkers

[23] In the March 2018 decision, the NFF were asked to confirm whether it would press a proposed substantive variation to the award relating to pieceworkers. The NFF made a further submission 12 referring to comments made in the AIRC’s decision issued on 3 April 2009, in which it decided “to apply the definitions of base rate of pay and full rate of pay in the NES to pieceworkers as if they were not pieceworkers”.13 The NFF’s position is that “for the purposes of calculating rates of pay while on leave etc., the base and full rates of pay of pieceworkers is the base rate of pay and the full rate of pay which the employee would have earned if he/she had not had a piecework agreement in place at the relevant time(s)”.14 Accordingly, the NFF advises that provided that no variations are proposed with respect to clause 15.10 of the current award (clause 10.2(j) of the Exposure Draft), the NFF does not press for any variation.15

[24] As the NFF no longer presses its proposed variation, and no other party has provided further comment or a subsequent proposed variation, we consider the matter to be withdrawn.

Item 50 – Definition of ‘ordinary hourly rate’

[25] In submissions filed in 2016, Ai Group submitted that the definition of ‘ordinary hourly rate’ should be amended to replace the reference to clause 10.1(a) with a reference to clause 10, so that rates payable to junior employees (which appear at clause 10.3) were captured. 16 Parties with an interest in the Horticulture Award agreed to the clause being amended as proposed by Ai Group.

[26] Ai Group made a further submission that the amended clause failed to have regard to employees to whom the National Training Wage or Supported Wage System applies. 17 Ai Group submitted that the definition of ‘ordinary hourly rate’ should be amended as follows:

‘ordinary hourly rate means the hourly rate for the employee’s classification specified in this award clause 10.1(a) and 10.3(a), plus any allowances specified as being included in the employee’s ordinary hourly rate or payable for all purposes’. 18

[27] In the March 2018 decision, we invited parties to file submissions in relation to Ai Group’s subsequent suggestion.

[28] Submissions were received from ABI, 19 the AWU20 and the NFF.21 No other party provided comment. Both ABI and the NFF support Ai Group’s subsequent proposed amendment outlined at paragraph [126] of the March 2018 decision, whilst the AWU does not oppose the subsequent proposed amendment.

[29] We agree with the submission of Ai Group and, in the absence of any objections, we will amend the Exposure Draft accordingly.

[30] An exposure draft of the Pastoral Award 2010 was published on 15 January 2016 22 and a Statement was issued on 24 February 2016 inviting submissions on the Group 3 and 4 awards.23

[31] In their submission of 17 April 2016, the AWU raised concerns relating to clause 31.1—Shiftwork definitions of the exposure draft (clause 35.3 of the current award). The AWU submitted that by inserting a definition of ‘non-continuous work’ at clause 31.1(c), the exposure draft had ‘conflated the concepts of non-continuous work and non-successive shifts.’ 24

[32] The NFF submitted, in response to the AWU’s submission, that ‘the term ‘non-successive shifts’ is a new term and hence a new concept in the award’. 25 ABI agreed generally with the other parties that clause 31.1 required further attention and indicated that they supported further discussion between the parties on the issue.26 In later submissions, the NFF agreed that the issue arises from the inclusion in the exposure draft of a previously undefined term ‘non-continuous work’.27

[33] In a Decision dated 6 July 2017 28 relating to Group 3 awards the Full Bench agreed with ABI, that the issues relating to clause 31.1 of the exposure draft should be the subject of further discussion between the parties and stated a conference would be convened for that purpose.29

[34] In a Decision dated 30 October 2017 30 relating to technical and drafting issues in Group 3 awards, the Full Bench noted that the issue also affected wage tables for shiftworkers in clauses B.4.2 and B.4.5 of the exposure draft. The Full Bench noted that all of the issues would be the subject of a conference.31

[35] On 9 February 2018, a conference was held in Sydney to discuss a number of outstanding issues relating to the award, including the issue arising from the continuous work definitions drafted in the exposure draft. 32

[36] A Report was issued on 9 February 2018 summarising the outcome of the conference and referring the continuous work issue to the plain language expert. 33

[37] The plain language expert reviewed the hours of work and shiftwork provisions and identified an anomaly in the drafting of the shiftwork provisions of the exposure draft arising from the conflation of continuous and non-continuous systems of work in attempt to simplify the award.

[38] The plain language expert proposed a revised draft of the hours of work and shiftwork provisions to remedy this anomaly. 34 The definition of ‘continuous work’ was moved to the new clause relating to continuous work, where the definition is relevant. The plain language expert also renamed ‘non-continuous shifts’ as ‘non-successive shifts’ to reduce confusion between non-continuous work systems and non-continuous shifts and moved that definition to a new clause 34—Penalty rates for shiftwork. The plain language expert also addressed other minor inconsistencies that arose in the re-drafting process.35

[39] In a Statement of 15 March 2018 36, interested parties were invited to review the plain language re-draft.

[40] The AWU broadly supported the plain language re-draft of clause 31 but submitted there are a number of remaining technical and drafting issues arising from the plain language re-draft, which are discussed below.  37

Clause 30

[41] The NFF noted it was their understanding that the plain language expert was considering the ‘continuous work’ provisions at clause 31 of the exposure draft, along with the footnotes at clauses B.4.2 and B.4.5 referring to those provisions. The NFF noted that the ‘ordinary hours of work provision’ at clause 30 of the exposure draft had been re-drafted by the plain language expert 38 but that clause 30 had not caused difficulty in practice and there was no basis for changing a clause that is comprehensible in its existing form.39

[42] The NFF submitted that much, but not all, of the substance of the re-draft appears to be consistent with the existing clause. However, the NFF submitted that “it is quite possible that changes – for example the introduction of vague language such as ‘normally’ or the substitution of ‘employee’ for ‘piggery attendant’ – may have an impact on the operation of the clause or, at the very least, cause confusion where none presently exists”. 40

[43] We note the NFF’s concern in relation to the word ‘normally’. In our view clause 30.1(a) would operate effectively if the word normally was deleted and we have decided to do so.

[44] We have considered NFF’s concern regarding the substitution of ‘employee’ for ‘piggery attendant’. The plain language draft uses ‘piggery attendant’ in the equivalent clauses as the current award. In the current award ‘piggery attendant’ is used in the first line of clause 35.1 and no other place in clause 35. In the plain language re-draft the equivalent clause is 30.1(d) and this clause still uses the term ‘piggery attendant’. We do not agree that the plain language draft impacts the meaning of the current award clause. However, for consistency of language used within this award, we have decided to change the words ‘piggery attendant’ to ‘employee’ in clause 30.1(d).

[45] The NFF also submitted that clause 30.2 of the exposure draft requires the employer to pay an ‘employee’ for a 38 hour week, regardless of the hours actually worked by the ‘employee’, whereas clause 35.1 of the current award only requires an employer to ‘use its best endeavours’ to pay the employee for 38 hours. 41 The NFF submitted that the proposed clause may have significant consequences for part-time employees, where an employee takes unpaid leave or if an employee works more than 38 hours in one week but less than 38 in the next week, as provided by a 4 weekly averaging system.42

[46] The relevant part of clause 35.1 of the current award is italicised below:

‘35.1 Ordinary hours for Piggery attendants will not exceed 152 in any four week period. If an employee works less than 38 hours in one week of any four week period then the employer will use its best endeavours to ensure that the employee is paid for 38 hours work during any such week…’ (emphasis added)

[47] The wording of clause 30.2 of the plain language re-draft has been amended because the current clause is vague and aspirational in nature and does not provide an enforceable entitlement to an employee or an obligation on an employer. In previous decisions, the Commission has declined to vary awards to insert provisions which may be characterised as ‘aspirational’ and which have little or no work to do. 43 On this basis we have decided not to revert to the current award wording.

[48] The NFF submitted that new clauses 31 – 34 are not necessary and are potentially risky because the current provisions are not a source of debate or dispute. The NFF submitted that given this, it is difficult to identify a strong rationale for introducing new provisions that may promote confusion and dispute or have other unintended consequences. 44 The NFF submitted that the re-drafted clauses contain a number of differences to the current award provisions.45

[49] We do not agree that the changes are unnecessary. As set out in the March Statement, it became apparent that when the exposure draft was drafted, continuous and non-continuous systems of work had been conflated in an attempt to simplify the current award, resulting in an error in the definition of continuous work in the exposure draft. 46 It was necessary to re-draft the clause to remedy the underlying drafting errors.

Clause 31.1

[50] The NFF submitted that clause 35.5(a) of the current award applies to ‘workers on continuous work’ whereas clause 31.1 of the exposure draft applies to the entire ‘workplace that operates on a continuous work basis’. The NFF submitted that the exposure draft clause may have a different application and that there is also considerable ambiguity around where a ‘workplace’ can be considered to operate on a ‘continuous work basis’. 47

[51] We agree that the application of continuous work provisions have changed. Clause 31.1 will be amended to read:

31.1 Clause 31 applies to shiftworkers who work on continuous work as defined in clause 31.2.

Clause 31.2

[52] The AWU, ABI, NFF and Business SA submitted that the words ‘at least’ before ‘six days in a row’ are not contained in the plain language re-draft of the definition of continuous work whereas they are in clause 35.3(b) of the current award. 48 ABI also submitted that the definition of continuous work in clause 31.2 of the exposure draft is not consistent with the most recent exposure draft published on 2 November 2017.49

[53] The words ‘at least’ will be added to clause 31.2 before ‘six days in a row’. With the above amendment, we are of the view that plain language re-draft accurately reflects the current award (and the most recent exposure draft) definition.

Clauses 31.4(b) and 32.3(b)

[54] The AWU submitted that the phrase ‘and up to 12 ordinary hours’ appearing at clauses 31.4(b) and 32.3(b) are not necessary because clauses 31.4(c) and 32.3(c) define the maximum length of a shift. 50

[55] Clauses 31.4(b) and 32.3(b) are in the following terms:

‘(b) If a shift is to be longer than 8 ordinary hours and up to 12 ordinary hours, then it is to be agreed by the employer and a majority of the employees in the plant, or work section, or sections concerned.’

[56] We agree. The words ‘and up to 12 ordinary hours’ will be deleted from clauses 31.4(b) and 32.3(b). We have also decided to change the order of the subclauses (b) and (c) within clauses 31.4(b) and 32.3(b) so that the maximum shift length appears before the facilitative provision providing for agreement to work shifts longer than eight hours.

Clause 31.6

[57] The AWU and ABI submitted that the phrase ‘that time is counted as work’ in clause 31.6 should be replaced with the phrase ‘which is counted as time worked’. 51 ABI submitted that this phrase is common in modern awards and is clearer than the language used in the plain language re-draft.52 Business SA submitted that the phrase ‘that time is counted as work’, used in the exposure draft, is less preferable to ‘which will be counted as time worked’.53

[58] We have decided to replace the words ‘that time is counted as work’ with ‘which is counted as time worked’ in clause 31.6 of the plain language re-draft.

Clause 32.1

[59] The AWU submitted the phrase ‘24 hours a day 6 day week’ in the heading of the clause is inaccurate for the same reason as clause 32.1 is inaccurate – it states a firm six days rather than at least six days. Further, the AWU submitted that neither the heading nor the content of the clause itself makes explicit reference to shiftworkers, which may result in confusion about the application of the clause. 54

[60] The AWU submitted the title of the clause should be amended to:

‘32.1 Clause 32 applies to shiftworkers at workplaces that do not operate on a continuous work basis’

[61] The AWU submitted that the text of clause 32.1 should be amended to:

‘Clause 32 applies to shiftworkers at workplaces that operate on a basis other than continuous work. Continuous work is defined at clause 31.2.’ 55

[62] ABI supported the AWU’s proposed amendment to clause 32.1. 56

[63] We agree with the AWU’s submission and will update the body of the clause in accordance with the AWU proposal. However, we will amend the title of clause 32.1 to ‘Application of clause 32’ for consistency with the title of the application clause in clause 31.

Clause 32.2(a)

[64] The AWU submitted that overall, clause 32 does not provide for crib time to be counted as time worked as it currently is in clause 35.6(a) of the current award. 57 The AWU submitted that the clause should be amended to:

‘(a) In any 28 day period, a shiftworker, inclusive of crib time:

(i) is not to work more than 152 ordinary hours; and

(ii) is to average 38 ordinary hours a week.’ 58

[65] The AWU had previously raised a similar issue in relation to crib breaks in the exposure draft prior to the plain language re-draft. The AWU submitted that the exposure draft confines the entitlement to a paid crib break to continuous workers, which is not contemplated by the current award. The AWU submitted that clause 35.6(a) of the current award describes non-continuous workers as working an average of 38 hours per week ‘inclusive of crib time’. 59 The AWU proposed an amendment to address their submission.60 This issue was outlined in a decision in July where it was determined the shiftwork provisions would be subject of a further conference.61

[66] We disagree with the AWU submissions. We are of the view that there is an anomaly in the current award provision. We acknowledge both clauses 35.5 (continuous work) and 35.6 (other than continuous work) include the words ‘inclusive of crib time’ in respect of the 38 ordinary hours of work.

[67] However, the provisions for continuous shiftworkers expressly state, at clause 35.5(c)(iv), that ‘20 minutes will be allowed to shiftworkers each shift for crib, which will be counted as time worked’. There is no equivalent entitlement to crib time for shiftworkers working other than continuous work under clause 35.6 of the current award in clause 35.6(b). The words ‘inclusive of crib time’ were omitted from clause 32.2(a) of the plain language re-draft of that clause to correct an anomaly in the current award. Clause 32.2(a) of the plain language re-draft will not be amended in the terms proposed by the AWU.

Clause 32.5

[68] The NFF submitted that clause 35.6(b) of the current award expressly provides for meal breaks to be taken at the discretion of the employer and, although it may be implied, clause 32.5 of the exposure draft has removed the express reference to the employer’s discretion. 62

[69] We agree that the reference to employer discretion has been omitted from the plain language re-draft. In our view, the employer discretion relates to the timing of meal breaks. We have decided to amend clause 32.5 of the plain language re-draft as follows:

32.5 An employer must allow an employee a meal break at least every 5 hours and may schedule the timing of meal breaks. An employee must work continuously apart from any meal breaks.

Clause 33.1

[70] The NFF submitted that clause 35.7 of the current award provides for a roster to specify the start and finish time of the ‘respective shifts’ but clause 33.1 of the exposure draft requires a roster to specify the start and finish times of ‘each shift’. NFF submitted this means a roster may be defective if it is not comprehensive to that level. 63 We see no significant difference between current award and the plain language re-draft and do not propose to amend clause 33.1 of the exposure draft.

Clause 33.2

[71] According to the NFF, clause 33.2 is entirely new and has uncertain consequences. 64

[72] We disagree. Clause 33.2 is based on clause 35.4 of the current award, which provides for amendment to the span of hours over which shifts may be worked, to be altered by up to one hour at either end of the span. Clause 35.4 of the current award sits directly below the definitions of shifts in clause 35.3. Clause 33.2 of the plain language re-draft applies to the equivalent definitions, which are contained in clause 34.1 of the plain language re-draft. Clause 33.2 maintains the meaning of the current award entitlement.

Clause 33.3(b)(ii)

[73] ABI and Business SA submitted that the clause refers to a singular ‘employee’, but should be amended to refer to the plural ‘employees’ 65 given that the clause refers to a variation agreed between the employer and employees regarding the method of working shifts.66 We agree. ‘Employee’ will be changed to ‘employees’ in clause 33.3(b)(ii).

[74] The NFF submitted that clause 35.8(b) of the current award provides two ‘co-existing’ ways to vary the start and finish times by an hour. The NFF submitted that under clause 33.3(b)(ii) of the exposure draft the employer’s power to make a decision is arguably only enlivened where the employer has been through a failed negotiation process with employees. 67

[75] We have decided to vary clause 33.3(b) of the re-drafted clause in order to better reflect the provision of the current award in the following terms:

‘33.3 Varying method of working shifts by agreement

(a) The employer and the majority of employees concerned may agree to vary the method of working shifts.

(b) Once the start and finish time of each shift have been determined (whether under paragraph (a) or in any other way), those times may be varied to suit the circumstances of the establishment:

(i) by the employer and the majority of employees concerned agreeing to a variation; or

(ii) if there is no agreement, by the employer giving the employee 5 days’ notice.’

Clause 34.1(d)

[76] The AWU submitted that the definition of ‘successive afternoon or night shift’ at clause 34.1(d) may cause confusion because of the use of the words ‘on which the employee works either afternoon shifts or night shifts’. The drafting may imply that a shiftworker who works a combination of afternoon and night shifts is working successive shifts. 68 The AWU submitted that for a shiftworker to be considered as working successive shifts, the required number of the certain type of shifts must be worked, whether it is afternoon shifts only or night shifts only.69 The AWU submitted that clause 34.1(d) should be amended to:

‘(d) Successive afternoon or night shift means an afternoon or night shift (that is not a permanent night shift as defined in paragraph (c)) worked by an employee during a period where the employee works:

(i) 5 successive afternoon shifts or 5 successive night shifts on a 5 day site; or

(ii) 6 successive afternoon shifts or 6 successive night shifts on a 6 day site.’

[77] We agree that the AWU’s proposed amendment accurately reflects the current award provision and minimises potential for confusion. Clause 34.1(d) will be updated in the terms proposed by the AWU.

Clause 34.1(e)

[78] The AWU submitted that the definition of ‘non-successive afternoon shifts or night shifts’ at clause 34.1(e) does not accurately reflect clause 35.9(b) of the current award. The AWU submitted that ‘the purpose of clause 34.1(e) is to entitle a shiftworker who does not work successive afternoon or night shifts to a higher loading for working such shifts. The drafting of clause 34.1(e), by using the words, “any mix of … shifts in any” does not necessarily achieve that purpose.’ 70

[79] The AWU further submitted that clause 35.9(b) of the current award places emphasis on the shifts not continuing for at least the number of successive shifts required for the shiftworker to be considered an afternoon or night shiftworker, therefore receiving the relevant loading in clause 35.9(a). The AWU submitted that clause 35.9(b) of the current award sets a clear threshold and if it is not met another loading will apply for the work performed by that shiftworker. 71 The AWU submits that the re-drafted clause does not clearly set out the threshold and the subsequent entitlements.72

[80] The AWU submitted that clause 34.1(e) should be amended to:

‘(e) Non-successive afternoon or night shift means an afternoon or night shift (that is not a permanent night shift as defined in paragraph (c)) worked by an employee during a period where the employee does not work:

(i) 5 successive afternoon shifts or 5 successive night shifts on a 5 day site; or

(ii) 6 successive afternoon shifts or 6 successive night shifts on a 6 day site.’ 73

[81] We agree that the definition of non-successive night shift under the plain language re-draft does not accurately reflect clause 35.9(b) of the current award. Clause 34.1(e) will be amended in the terms proposed by the AWU.

Clause 34.2

[82] ABI and Business SA noted that the clause contains an incorrect cross-reference to ‘clause 0’, which should be to ‘clause 31’. 74 This cross-reference will be amended.

[83] The NFF submitted that under clause 34.2 of the exposure draft an employee appears to qualify for a penalty rate when they work just one shift that satisfies the definition, rather than when they have completed a series of shifts. 75

[84] We have decided to amend the lead in words at 34.2 in order to simplify the application of the rates in the clause. We propose the following amendment to clause 34.2:

‘34.2 Rates for shiftwork

An employer must pay an employee working ordinary hours on the shifts defined in clause 34.1 at the rates in the table below:

NOTE: employees to whom Part 7 applies may work on shifts under:

(a) Clause 31—Continuous work hours—Ordinary hours and roster cycles for shiftworkers: or

(b) Clause 32—Other than continuous work hours—Ordinary hours and roster cycles for shiftworkers.’

Schedule B

[85] The tables at B.4.2 and B.4.5 will be updated to reflect the amendments to the shiftwork and hours of work clauses as follows:

•  The heading in column 2 of the tables at B.4.2 and B.4.5 will be updated to ‘Successive afternoon or night shift’;

•  Note 1 will be updated to ‘Afternoon and night shift, and successive shift afternoon and night shift are defined in clauses 34.1(a), (b) and (d)’;

•  The heading in columns 3 and 4 of the tables at B.4.2 and B.4.5 will be updated to ‘Non-successive afternoon or night shift’; and

•  Note 2 will be updated to ‘Non-successive afternoon and night shift is defined in clause 34.1(e)’.

[86] This decision resolves the issues related to continuous shiftwork and hours of work in the Pastoral award. We are conscious that in the preceding paragraphs ([30]- [85]) we have determined a significant number of related issues and that this may give rise to some unintended consequences. For this reason, we propose to publish a revised exposure draft in relation to the Pastoral Award and provide interested parties with a further opportunity to comment.

[87] After the March 2018 decision, a number of matters remained outstanding and interested parties were invited to provide further submissions on the issues. Submissions were received from ABI, Ai Group, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU), the AWU, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), and the NFF.

Item 23 – Hours of work – altering the spread of hours

[88] In the March 2018 decision we dealt with an outstanding issue relating to altering the spread of hours. We decided that 11.3(c) and 11.3(d) would be retained and our redrafted clause 11.3(d) would be inserted into the Exposure Draft. We decided that the remaining issue of the potential ambiguity in clause 11.3 would be dealt with at the conclusion of the Award stage of the Review.

[89] Following the March 2018 decision, submissions were received from Ai Group and the AMWU, no other party made further comment. The AMWU notes we have determined to maintain the provisional view that 11.3(c) and 11.3(d) as redrafted will be retained in the award, and the issue of ambiguity in clause 11.3 will be dealt with at the conclusion of the Award stage of the Review. The AMWU ‘presses its view that the intention of the clause was not to provide for a longer span of hours but to provide flexibility for when the span of hours would begin and finish’. 76

[90] Ai Group submits that the provisions in the award are based on the Manufacturing and Associated Industries Award 2010 and when considering the history of the award clauses in the Metal Industry Award Simplification Case and the Manufacturing and Associated Industries Award 2010, it is obvious that there was no intention for overtime penalties to be paid for the additional hour at each end of the spread of hours, where the spread is expanded in accordance with the facilitative provision. Ai Group submits that it is clear that the AMWU’s arguments in relation to the interpretation of clause 11.3(d) in the Exposure Draft are not correct, and the Full Bench has made the correct decision in adding the following underlined words to the clause (i.e. “other than in accordance with clause 11.3(c)”). 77

[91] The matter was determined in the March 2018 decision. As was noted in that decision, the potential ambiguity in clause 11.3 will be dealt with at the conclusion of the award stage. A Statement regarding this matter will be issued shortly.

Item 11 – Facilitative Provisions

[92] In the March 2018 decision, 78 parties were directed to file their submissions on the facilitative provisions contained in the Exposure Draft. Submissions were received from the AMWU, AWU, CEPU and NFF.

[93] The AWU filed a submission on 5 April 2018, 79 in which it sets out the agreed position of the parties on this matter. The AMWU,80 CEPU81 and NFF82 support the AWU’s submission.

[94] Below is the list of facilitative provisions, with the agreed amendments in red: 83

•  7.4(g) – Casual Conversion (an individual);

•  7.4(j) – Casual Conversion (an individual or majority of employees);

•  11.2(d)(iv) and 11.3(e)(iv) – Rostered days off – substitution of days;

•  11.2(d)(v) and 11.3(e)(v) – Rostered days off – banking of days;

•  11.3(a) – Averaging of weekly ordinary hours – exceeds 28 days;

•  11.3(c) – Altering spread of hours;

•  12.1(d) – Rest breaks (majority of employees);

•  12.4(d) – Rest breaks;

•  19.1(c) – Payment of wages – frequency;

•  25.6 – Time off instead of payment for overtime;

•  25.7(a) – Make-up time;

•  26.1(b) – Averaging of weekly ordinary hours – shiftworkers – exceeds 28 days;

•  26.9(a) – Nominal crushing season – shiftwork – hours of work;

•  26.10(a) – Nominal slack season – shiftwork – reducing length of shift;

•  26.10(d) – Rostered day off; and

•  26.10(f) – Nominal slack season – shiftwork – Rostered days off – banking of days.

[95] We agree with the position of the interested parties in relation to additional facilitative provisions to be included in the table. The exposure draft will be updated accordingly.

Item 21- Overtime and penalty rates – other than shiftworkers and Items 55, 55A and 55B – Shiftwork

[96] In the October 2017 decision, we dealt with an issue relating to the correct Sunday rate for field sector employees at paragraphs [479] to [491] of that decision. We expressed a provisional view that the existing definition of ‘shiftwork’ in clause 26.2(a) should not be amended and noted that the current clause would be retained, unless interested parties provided a persuasive submission as to why the definition should be varied.

[97] We also set out a provisional view that we would abandon proposed clause 26.X and adopt the AWU’s proposed amendment 84 to clause 26.4 as follows:

‘26.4 Extra weekend payments – other than field sector

(a) Sugar milling

For sugar mill employees, where continuous shiftwork is regularly performed on a three shifts per day basis, over a period of seven days per week, all time worked up to eight hours in any shift between midnight Friday and midnight Sunday must be paid at 150% of the minimum hourly rate. Such payments will be in addition to any allowance payable for the working of an afternoon or night shift.

(b) Bulk terminals

For bulk terminal employees, shift work ordinary hours performed between midnight Friday and midnight Saturday must be paid at the rate of 150% of the minimum hourly rate. Shift work ordinary hours performed between midnight Saturday and midnight Sunday must be paid at the rate of 200% of the minimum hourly rate.’

[98] We noted that the amendment would require further drafting. Parties were invited to comment further on the proposed amendment to clause 26, in particular we requested that parties submissions answer the following questions:

•  Are there any interaction issues with clause 26.3(b), concerning ordinary hours of work and proposed extra weekend payments for continuous shift work for work on weekends which is within ‘ordinary hours of work’?

•  Would there be an extra payment for continuous shift workers working ordinary hours between midnight Friday and midnight Sunday?

•  Would bulk sugar shift workers still be entitled to penalty rates for working afternoon and night shifts on weekends as per clause 26.5?

•  How would ‘all time worked up to 8 hours’ interact with the ordinary hours of a shift worker in clause 26?

•  Does the proposed ‘minimum hourly rate’ refer to that of a shift worker (with loading) or that of a permanent employee?

•  Is there reason why bulk sugar terminals do not have equivalent entitlements to shift workers as sugar milling?

[99] In the March 2018 decision we noted that we had not received any submissions addressing the above questions. Parties were directed to file submissions addressing the above questions.

[100] Submissions were received from ABI, 85 the AMWU,86 the AWU87 and the NFF.88

[101] The AWU notes it has previously provided brief responses to a number of the questions listed at paragraph [199] of the March 2018 decision in its submission of 28 November 2017 89 and submits the further responses in its submission of 16 April 2018 reinforce and further develop those previous responses. ABI also made submissions in response to the questions.

[102] The AMWU submits it supports the AWU’s submissions to date, that is at or before 10 April 2018. 90 The NFF submits it does not make any further submissions in relation to this matter, but reserves the right to make submissions in reply.91

[103] We deal with each question in turn below.

•  Are there any interaction issues with clause 26.3(b), concerning ordinary hours of work and proposed extra weekend payments for continuous shift work for work on weekends which is within ‘ordinary hours of work’?

[104] In response to this question, the AWU submits there are no interaction issues between proposed clause 26.4 (as set out at [198] of the March 2018 decision) and clause 26.3(b) of the Exposure Draft, and that clause 26.3(b) provides the ordinary hours of work for continuous shiftworkers, and the proposed clause 26.4 provides for a loading to be paid should those hours fall on the weekend.

[105] ABI also submits there are no interaction issues between the proposed clause 26.4 and clause 26.3(b) of the Exposure Draft for work on weekends which is considered to be within ‘ordinary hours of work’. ABI further submits the proposed clause 26.4 provides for loadings to be paid where sugar mill employees and bulk terminal employees work hours which fall between midnight on Friday and midnight on Sunday. ABI submits that clause 26.3(b) of the Exposure Draft establishes the ordinary hours of work for continuous shift workers.

•  Would there be an extra payment for continuous shift workers working ordinary hours between midnight Friday and midnight Sunday?

[106] The AWU submits that clause 26.4 of the Exposure Draft does entitle a continuous shiftworker to additional payment for working ordinary hours between midnight Friday and midnight Sunday. It submits that for mill shiftworkers this is consistent with the entitlement in clause 32.4 of the Sugar Industry Award 2010; and for bulk terminals shiftworkers this is consistent with the entitlement in clauses 6.5.2 and 6.5.3 of the Bulk Terminals Award – State 2003.

[107] In response to questions two and three, ABI submits there would be an extra payment for sugar milling employees (as per proposed clause 26.4(a)) who are continuous shift workers working ordinary hours, as the penalty payable for ordinary hours worked between midnight Friday and midnight Sunday is expressed to be in addition to any allowance payable for the working of an afternoon or night shift. Accordingly, the afternoon and night allowances in clause 26.5 of the Exposure Draft would also apply to sugar milling employees.

[108] In respect of bulk terminal employees (as per proposed clause 26.4(b)) who are continuous shift workers working ordinary hours, it is not apparent that they are entitled to receive both the afternoon and night allowances in clause 26.5 of the Exposure Draft and the extra weekend loading set out in the proposed clause 26.4(b). The phrase, which appears in proposed clause 26.4(a), “[s]uch payments will be in addition to any allowance payable for the working of an afternoon or night shift”, does not appear in the proposed clause 26.4(b). ABI submit on an ordinary reading of this clause and in the absence of a similar provision to that which is clearly expressed in the proposed clause 26.4(a), the bulk terminal employees would not be entitled to receive the afternoon and night allowances in clause 26.5 of the Exposure Draft.

•  Would bulk sugar shift workers still be entitled to penalty rates for working afternoon and night shifts on weekends as per clause 26.5?

[109] ABI’s submission in relation to penalty rates for bulk sugar workers is set out above.

[110] The AWU notes that the additional payment for bulk terminals shiftworkers in proposed clause 26.4 is not payable in addition to the shift loadings in clause 26.5 of the Exposure Draft.

•  How would ‘all time worked up to 8 hours’ interact with the ordinary hours of a shift worker in clause 26?

[111] The AWU submits the proposed clause 26.4(a) states that the additional payment applies where shiftwork is regularly performed on a three shifts per day basis. The AWU understands that the words “all time worked up to eight hours in any shift” assumes that an operation in which shiftwork is regularly performed in three shifts every 24 hours would be performed in three shifts of eight hours each. 92

[112] ABI refers to paragraph 11 of the AWU submission of 16 April 2018, and agrees with the submission put by the AWU in answer to this question.

•  Does the proposed ‘minimum hourly rate’ refer to that of a shift worker (with loading) or that of a permanent employee?

[113] ABI submits that the proposed ‘minimum hourly rate’ is that of a permanent employee. It notes the definition of this term in the definitions at clause 2 of the Exposure Draft “minimum hourly rate means the award minimum weekly wage divided by 38”.

[114] The AWU also submits the proposed ‘minimum hourly rate’ refers to that of a permanent employee.

•  Is there reason why bulk sugar terminals do not have equivalent entitlements to shift workers as sugar milling?

[115] The AWU submits there are two relevant pre-modern awards (Sugar Milling Industry Award – State 2005, and Bulk Terminals Award – State 2003) for bulk terminals employees and sugar milling employees which provided for different entitlements for shiftworkers performing work on weekends. The AWU submits these entitlements have not been disturbed and the AWU understands that there has been no cogent reason to do so. 93

[116] ABI agrees with the AWU’s submissions that the reason why bulk sugar terminals shift workers do not have equivalent entitlements as sugar milling shift workers is because this reflects the historical award provisions that applied to each of these distinct areas of operation within the sugar industry.

[117] The answers provided to the questions posed clarify the manner in which these provisions operate and do not give rise to any need to amend the Exposure Draft.

Item 33 – Single contract hourly rate

[118] Following an amendment to clause 13.2(a) of the Exposure Draft, the NFF and Canegrowers Mackay advised of an issue in relation to the table of rates contained in clause 13.1. The NFF submitted that the inclusion of the column in the table of rates headed “Single contract hourly rate” had the effect of changing the minimum hourly rate for employees engaged on this basis so that it includes the 15% loading for all purposes, 94 due to the operation of clause 13.2(b) which defines the minimum hourly rate for employees engaged.95

[119] The NFF proposed that the column in clause 13.1 headed “Single contract hourly rate” be deleted and that the proposed change to clause 13.2(a) be amended as follows:

‘13.2 Single contract hourly rate

(a) Field sector employees may be engaged in writing on a single contact (sic) hourly rate basis and will be paid a 15% loading above the minimum hourly rate for each hour actually worked instead of the provisions of clauses 11.2(c), 25.1 and 25.2, irrespective of the number of hours worked per day or per pay period or the days of the pay period on which work is performed.’

[120] The NFF proposed a new clause 13.2(d) be added as follows:

•  ‘To avoid doubt, the 15% loading payable under clause 13.2(a) does not apply to payment for public holiday and leave entitlements.’

[121] The AWU did not oppose an amendment to clarify that the 15% loading is not paid in addition to public holiday penalty rates and generally accept that the 15% loading would not currently be paid on periods of annual leave under the modern award or the NES. The AWU noted, however, that any amendment made to the clause should be worded in a manner that does not purport to remove the entitlement for periods of long service leave as this matter must not be dealt with in the award or the exposure draft. 96

[122] In the March 2018 decision we proposed the amendment of the table of rates to insert a new clause 13.2(d). Parties were invited to provide any objections or comments to the proposal.

[123] Submissions were received from the AWU 97 and the NFF.98

[124] The NFF continues to rely on previous submissions, and supports a variation to the clause to reflect its submission dated 8 July 2016. 99

[125] The AWU maintains its opposition to the removal of the single contract hourly rate column in the table at clause 13.1 of the Exposure Draft. The AWU reiterates its previous submission that if an additional clause is being inserted into the Exposure Draft to address the NFF’s concerns that the loading may be paid on public holidays worked or during periods of annual leave, and the table includes a note that cross-references that same clause, it is entirely unnecessary to amend the table at clause 13.1 of the Exposure Draft.

[126] The AWU submits the inclusion of the single contract hourly rate column in the table at clause 13.1 has no effect other than adding to the ease of use of the award. The AMWU further submits that it “does not see the logic in including the calculated hourly rates of pay for all employees covered by the Sugar Industry Award except those on a single contract hourly rate”. 100

[127] The AWU understands that the Full Bench has not determined the content of the new clause 13.2(d) and therefore submits there is no content to comment on. However, the AWU continues to oppose the NFF’s proposed clause 13.2(d) as it purports to remove the entitlement for periods of long service leave.

[128] The AWU suggests that “the proposed clause 13.2(d) be couched in more specific terms than that proposed by the NFF to ensure that the entitlement is clearly understood”. 101

[129] A conference will be held before Deputy President Asbury in relation to this issue. A background paper summarising the issue will be published prior to the conference.

[130] Following the March 2018 decision, two outstanding issues remain in relation to the Silviculture Award 2010. These issues were outlined in our October 2017 decision and relate to two claims made by the AWU: 102

•  the piecework agreement must be in writing and specify the applicable piecework rate; and

•  an amendment clarifying the paid leave entitlements of pieceworkers.

[131] These two issues were referred from technical and drafting issues to a separately constituted Full Bench in the Decision [2017] FWCFB 5536. 103

Piecework requirements

[132] The AWU propose amending clause 10.4(a) of the exposure draft to include two additional requirements that: the piecework agreement must be in writing and must specify the applicable piecework rate. 104 In particular the AWU seeks a clause 10.4(a) that provides as follows:

‘Employees may agree in writing to work on piecework rates. The piecework agreement must specify the applicable piecework rate which will be paid for all work performed under the piecework agreement. Provided that where an employee works on piecework rates, that employee must receive at least the ordinary hourly rate per hour of work.’

[133] The clause in the exposure draft, which reflects the provision in the current award, currently provides:

‘Employees may work on piecework rates. Provided that where an employee works on piecework rates, that employee must be paid at least the ordinary hourly rate.’

[134] In its initial submission, the NFF objected to the claim on the basis it was a substantive rather than a technical and drafting matter. 105 The NFF proposed an alternative clause which they submitted has the effect of reinserting the reference to the ‘relevant classification’:

‘Employees may work on piecework rates. Provided that where an employee works on piecework rates, the employee must be paid at least the amount the employee would have received for time worked at the ordinary hourly rate for the relevant classification.’

[135] On 30 July 2018 106 the President held a conference (‘the July 2018 conference’) with the parties to work out how best to proceed with this issue. At the conclusion of the conference, the parties were requested to make written submissions on the issue.

[136] A submission was received from the NFF stating that by consent the AWU and the NFF agreed to a variation to clause 10.4(a) of the exposure draft as follows:

‘Employees may agree in writing to work on piecework rates. The piecework agreement must specify the applicable piecework rate which will be paid for all work performed under the piecework agreement. Provided that wWhere an employee works on piecework rates, the employee must be paid at least the amount the employee would have received for time worked at the ordinary hourly rate for the relevant classification.’

[137] We accept the jointly proposed amendment to 10.4(a). The exposure draft will be updated accordingly.

Pieceworker –leave entitlements

[138] The AWU proposed amendments to clause 10.4(d) and (e) of the Exposure Draft to clarify the entitlements for paid leave for pieceworkers.

[139] The Exposure Draft currently states:

(d) For the purpose of the NES, the base rate of pay for a pieceworker is the base rate of pay as defined in the NES.

(e) For the purpose of the NES, the full rate of pay for a pieceworker is the full rate of pay as defined in the NES

[140] The AWU proposed to insert a provision stating that:

‘during periods of paid leave a pieceworker is entitled to receive the greater of the following amounts:

•  The rate of pay specified in the Exposure Draft the appropriate type of leave; or

•  The employee’s average piecework earnings calculated in accordance with the definition of “base rate of pay” for award/agreement free pieceworkers contained in Regulation 1.09 of the Fair Work Regulations 2009’

[141] The NFF agreed that a revised approach was required to clarify how accrued entitlements were calculated, but proposed the following alternative clauses: 107

‘(d) For the purpose of the NES, the full rate of pay for a pieceworker is calculated by dividing the total amount earned by the employee during the 12 months immediately preceding the taking of the NES entitlement by the total hours worked by the employee in that period.

(e) For the purpose of the NES, the base rate of pay for a pieceworker is calculated in the same way as the full rate of pay for a pieceworker, except that the total amount earned by the employee over the preceding 12 month period must be reduced by any incentive-based payments and bonuses, loadings, monetary allowances, overtime or penalty rates or any other separately identifiable amounts paid in that period.’

[142] In the July 2018 conference 108 the Commission suggested that following the 4 yearly review, the parties could seek to vary the award at any point to clarify any uncertainty or ambiguity in relation to pieceworker leave entitlements.109 The AWU withdrew the pieceworker leave entitlements claim.110

[143] There are no further outstanding issues in relation to the Silviculture Award.

[144] Following the March 2018 decision, one outstanding issue remains in relation to the Wine Award.

Items 25 and 30-32: ordinary hours of work

[145] The issue was raised by the Ai Group and relates to items 25 and 30-32 of the summary of submissions document. A proposal relating to these items was agreed upon during conferences held in relation to the Wine Award. In Deputy President Clancy’s Report to the Full Bench dated 25 August 2016, Attachment A states the following:

‘Items 25 and 30-32. Parties agreed to the following words proposed by the AWU being inserted at the start of Clause 8 and that these would resolve these four (4) items– “The following provisions in clause 8 apply to day workers and shift workers except for clause 8.5”.’ 111

[146] The exposure draft was subsequently updated and republished on 2 November 2017 with this wording inserted at clause 8.1. The Ai Group made the following submission on 24 November 2017: 112

‘We are concerned that the renumbering of provisions under clause 8 has resulted in an anomaly arising from the most recent version of the exposure draft. Specifically, it is our submission that:

•  Clauses 8.2 – 8.5 apply to day workers and shiftworkers;

•  Clause 8.6 applies only to day workers; and

•  Clauses 8.7 – 8.9 apply to day workers and shiftworkers.’

[147] The issue the Ai Group raised arises in the exposure draft at clause 8.1.

[148] Clause 8 in the updated exposure draft states:

‘8 Ordinary hours of work and rostering

8.1 The following provisions in clause 8 apply to day workers and shift workers except for clause 8.5

8.2 Maximum weekly hours and requests for flexible working arrangements are provided for in the NES.

8.3 Subject to clause 8.7, the ordinary hours for a day worker or shiftworker are an average of up to 38 per week.

8.4 Ordinary hours are to be worked continuously, except for meal breaks.

8.5 Ordinary hours must not exceed 10 hours on any day, except where there is agreement between the employer and the majority of employees in the relevant workplace or section of it, in which case the daily maximum may be extended to up to 12 hours.

8.6 Ordinary hours of work—day workers

(a) Ordinary hours are worked between the hours of 6.00 am and 6.00 pm, Monday to Friday, subject to the following exceptions:

(i) ordinary hours for an employee rostered to perform work in the cellar door may are to be worked between 6.00 am and 6.00 pm, Monday to Friday, and 8.00 am and 6.00 pm on Saturday and Sunday; and

(ii) ordinary hours for an employee rostered to perform work in the vineyard may are to be worked between 5.00 am and 6.00 pm, Monday to Saturday, during the period of the vintage.

(b) Vineyard employees during the vintage

(i) For the purposes of this clause 8.6, vintage means a period not exceeding six months between November and June inclusive, which starts on the date when the harvest of wine grapes begins at a particular vineyard and ends on the date the last wine grapes are harvested at that vineyard.

(ii) The employer must make and retain a record of the beginning and end of each vintage in conjunction with relevant time and wages records.

(iii) Where at the commencement of this provision an employer was utilising the extended ordinary hours for vineyard employees under the former clause 28.2(d) of this award, the terms of that provision will apply until the commencement of the vintage as defined in clause 28.2(d)(ii) above.

(c) The spread of hours may be varied by agreement between an employer and the majority of employees in the relevant workplace or the section or sections of it.

8.7 Methods of arranging ordinary working hours

The following provisions in clause 8 apply to day workers and shift workers except for clause 8.5.The method of working the 38 hour week must be agreed between the employer and the majority of employees in the relevant workplace or section or sections of it and may be worked in one of the following arrangements:

(a) 19 days of eight hours in each four week period, with either a fixed or rostered day off;

(b) nine days of eight hours and one day of four hours in each fortnight with either a fixed half-day off or a rostered half-day off at the beginning or end of the working week;

(c) four days of eight hours and one day of six hours in each week, with the six hour day being at the beginning or end of the working week; or

(d) any other arrangement agreed to by the employer and the majority of employees directly affected.

8.8 Daylight saving

For work performed on a shift that spans the time when daylight saving begins or ends, as prescribed by relevant state or territory legislation, an employee will be paid according to adjusted time (i.e. the time on the clock at the beginning of work and the time on the clock at the end of work).

8.9 Make-up time

(a) An employee may elect, with the consent of the employer, to work make-up time, under which the employee takes times off during ordinary hours and works those hours at a later time, during the spread of ordinary hours provided for in clause 8—Ordinary hours of work and rostering.

(b) On each occasion the employee elects to use this provision the resulting agreement must be recorded in the time and wages records at the time when the agreement is made.’

[149] In our March 2018 decision we asked interested parties to notify the Commission if they agree with the Ai Group on this issue. We stated that the clause will be redrafted if other interested parties are in agreement with the Ai Group. We received submissions from the following parties:

•  The Australian Workers’ Union

•  Business SA

•  South Australian Wine Industry Association

•  National Farmers’ Federation

•  Australian Industry Group

[150] Each of the parties agreed with the Ai Group’s submission that the wording at clause 8.1 of the Exposure Draft does not reflect the agreed position of the parties. The parties submit that the cross-reference to clause 8.5 in clause 8.1 needs to be updated to clause 8.6 to reflect the renumbering that occurred by inserting the agreed wording as a discrete clause at 8.1. As the parties have agreed on this matter, the exposure draft will be updated accordingly.

[151] The AWU, NFF and SAWIA also note that the agreed wording “the following provisions in clause 8 apply to day and shift workers except 8.5” mistakenly appears again at the start of clause 8.7. The NFF submit that this wording be deleted. We agree that this wording appears at the start of clause 8.7 due to a drafting error and will update the exposure draft accordingly.

Causal conversion clause

[152] Submissions have been received from Ai Group on 19 January 2018 and 16 July 2018 in relation to the drafting of the casual conversion clauses in a number of exposure drafts, including in the exposure draft for the Wine Industry Award. In a recent decision relating to Group 1 awards 113, the Full Bench referred the issue to the Plain Language Full Bench, and noted that a short statement will be issued summarising relevant submissions and directions for the filing of further submissions.114

[153] There are no further outstanding issues in relation to the Wine Award.

[154] In our March 2018 decision we outlined an outstanding issue relating to public holiday substitution at paras [270] to [276].This issue is connected to the issue dealt with at paras [12] to [14] of this decision, in relation to the Educational Services (Post-Secondary) Education Award.

[155] The NTEU raised the issue in their submission dated 8 June 2016:

‘It is long established practice that many universities schedule teaching and related activities on some public holidays, and treat these as ordinary working days for the purpose of setting the academic calendar for staff and students. 20.2 reflects this practice, and the quid-pro-quo that the parties in the industry have settled on: a substitute day which itself will be treated as a public holiday for the purposes of matters such as the taking of leave and the payment of penalty rates.

The question arises whether this established practice is consistent with the NES.

The NES (s. 114) commences with an employee’s entitlement to take off public holidays but that entitlement is immediately qualified by an employer right to request that the employee work on a public holiday, a request which can only be refused by the employee if the request is unreasonable. Factors which are relevant to reasonableness relate not only to the operational requirements of the employer, but to the personal circumstances and particular nature of work performed by the employee.

In the absence of clause 20.2, it is likely that the practice of universities to require staff to work on public holidays as a matter of course would generally be considered “reasonable”. However in order to be consistent with the NES, it seems likely that

(a) the employer would need to pay penalty rates for staff who work on those days, rather than deferring that entitlement to another date (for example, what would be the entitlement of a person who ceased employment before the substituted day came around?);

(b) the employer would need to be open to reasonable requests from staff not to work on those days, having regard to personal circumstances including family responsibilities; and

(c) the request to work on the public holiday should be directed only to those staff where the nature of the work they perform is relevant to the capacity of the institution to perform its business on that day.

S. 115(3) allows for substitution arrangements to be provided for in a modern award, but on the basis of agreement between an employer and an employee, rather than as a blanket, non-negotiable provision. The combination of the words “subject to the provisions of this clause” and the words of clause 20.2 therefore appear to be inconsistent with the provisions of the NES on public holidays.

A better approach would be to delete the words “subject to the provisions of this clause” from 20.1, and to amend the first line of 20.2(a) to read “An employer and an employee may agree to substitute…’  115

[156] In their submission dated 15 April 2016, the AHEIA stated that they ‘would be opposed to removing the industry-specific wording that reflects the practice in the sector of substituting public holidays, especially over the Christmas close-down period.’ 116

[157] In our March 2018 decision we noted that this issue arises in a number of other modern awards, including the:

•  General Retail Industry Award 2010;

•  Manufacturing and Associated Industries and Occupations Award 2010; and

•  Mining Industry Award 2010.

[158] As a determination of the issue in the context of Higher Education Industry–Academic Staff–Award 2010 (Academic Staff Award) may have implications for other awards we had decided not to deal with the issue at the time of the March 2018 decision. On 15 March 2018 a Statement was issued by the President referring the issue of public holiday substitution, either unilaterally by an employer, or by majority agreement, to the Plain Language Full Bench for a broader review. 117 On 27 April 2018 Vice President Hatcher issued directions inviting interested parties to make submissions on the issue.118 As such, this issue will not be dealt with any further in the award stage and is currently before the Plain Language Bench for determination.

[159] There are no further technical and drafting matters concerning the Academic Staff Award.

[160] In the March 2018 decision, the Full Bench proposed to convene a further conference of interested parties to discuss the outstanding issue of which rates apply to shiftwork on weekends.

[161] A proposal about how to resolve the matter was outlined in a background paper published on 6 June 2018, which stated: 119

‘[25] With the exception of Business SA and MIAL, the parties appear to agree that shift work on Saturdays and Sundays is paid at the overtime rate and is not inclusive of shift allowance. Both the current award and exposure draft seem to support this, though it requires a careful reading of the three relevant clauses to arrive at that position.

[26] If this position were adopted it may be desirable to insert a new clause at 13.3 of the exposure draft, to clarify how the shiftwork rates interact with overtime, along the following lines:

“Shiftwork rates in clause 13.2 are not payable when working overtime. The relevant overtime rate is payable instead.”

[162] This proposal was discussed at the conference which was convened on Thursday 21 June 2018. During the conference the AWU, AMOU, MUA, AIMPE and MIAL all agreed with the proposed new clause 13.3 which was set out at paragraph [26] of the background paper.

[163] The AWU and AMOU suggested that alternative wording may be preferable due to the contention around whether or not shiftwork can be worked on Saturdays and Sundays. They suggested the following wording 120:

“Shiftwork rates in clause 13.2 are not payable when working outside of ordinary hours. In clause 7.2, the relevant overtime is payable instead.”

[164] The MUA also supported the alternate wording as did AIMPE who had concerns regarding the use of the words “when working overtime”. Whilst MIAL broadly supported the new wording they noted that as shiftwork, by its definition, will finish outside of the span of ordinary hours the wording may cause confusion. Ultimately, the parties agreed to proceed with the wording of the clause proposed in the background paper.

[165] AFEI did not support the proposal and advanced an alternative view in respect of the issue. At the conference before the Commission, AFEI were requested to convene a teleconference of interested parties to address their position concerning ordinary hours and weekend rates under the Award. During that teleconference, AEFI were requested by a number of other parties to file written details explaining their position. 121

[166] On 2 August 2018 AEFI made a submission explaining their position, 122 which was also made on behalf of the Boating Industry Association – Commercial Vessels Division and the Association of Marine Park Tourism Operators. The submission states:

“The Background Paper states, incorrectly in our view, that ‘any work between midnight on Friday and midnight on Sunday is overtime.’ The Background Paper’s statement indicates its conclusion is based on Clause 18.2 of the Award which states ‘[o]rdinary hours may be worked between 6am and 6pm for up to eight hours per day, Monday to Friday inclusive.’”

[167] AFEI submits the following:

“•  Clause 18.2 of the Award is not an exhaustive statement of when ordinary hours can be worked;

•  Clause 20.1(b) of the Award is clear that it permits ordinary hours to be worked on Saturdays, irrespective of whether it is day work or shift work

•  Clause 20.3 of the Award is clear that it permits ordinary hours to be worked on Sundays, irrespective of whether it is day work or shift work;

•  The Award prescribes a loading of 50% and 100% respectively for ordinary hours and overtime worked on Saturdays and Sundays;

•  Clause 18.2 of the Award is not an impediment to working ordinary hours on a weekend, or on shift work;

•  There is no justification for removing the wording currently in Clause 20.1(b) and 20.3 of the Award from the substantive text of the section, which permits ordinary hours to be worked on weekends.

•  The Exposure Draft should be revised to ensure it is clear that it continues to permit an employee to work ordinary hours on a Saturday and Sunday, as is currently permitted by Clause 20.1 of the Award.”

[168] AEFI submit that Clause 12.2 of the Exposure Draft be revised as follows to retain the wording from the current Award:

12.2 Employees will be paid the following rates for overtime worked Monday to Friday, ordinary hours and overtime worked on a Saturday or on a Sunday, or work on a public holiday:

[169] Clause 12.2 of the current exposure draft was initially proposed in table form in the MUA submission of 14 April 2016 to clarify when overtime rates were applicable. The words above that table were modified to incorporate suggested words from the AWU’s submission dated 18 April Submission. Clause 12.2 of the exposure draft, which was last published on 18 July 2017, is currently in the following terms:

12.2 Employees will be paid the following rates for all overtime worked Monday to Friday, work on a Saturday or on a Sunday, or work on a public holiday or ordinary weekend work at the following rates:

[170] AEFI states that if the Commission intends to proceed with the current wording in Clause 12.2 of the Exposure Draft that directions be issued for interested parties to file written submissions on this matter.

[171] Clause 12.2 of the current exposure draft was initially proposed in a table form in a submission from MUA on 14 April 2016, with alternative wording at the start of the clause to resolve the inconsistency between the span of hours provided for ordinary hours at clause 7.2 and the mention of ordinary hours in relation to overtime on weekends. 123 The words above the table in that submission (which were incomplete) were further modified to incorporate suggested words from the AWU’s 18 April 2016 submission.124

[172] AEFI’s submission seeks to resolve a potential inconsistency between the span of hours clause and the inclusion of ordinary hours for overtime rates on weekends and public holidays by stating that the span of hours clause is non-exhaustive. The span of hours clause, at 7.2 of the exposure draft and 18.2 of the current award reads as follows:

“Ordinary hours may be worked between 6.00 am and 6.00 pm for up to eight hours per day, Monday to Friday inclusive.”

[173] Whilst this clause uses the phrase “may be worked” rather than “must be worked” or “are only worked” suggesting it may be considered permissive rather than exhaustive, we see little utility in a span of hours clause that is not exhaustive. If we accept AFEI’s submission that ordinary hours can be worked on weekends, it should follow that the span of hours clause be amended to clarify this.

[174] AEFI’s submission does not specifically address the issue of whether shiftwork undertaken on weekends attracts shift allowance rates in addition to overtime rates. If AFEI’s proposal were accepted, the proposed clause 13.3 may no longer exclude the possibility of shiftwork rates being paid in addition to overtime rates on weekends as shiftwork on weekends could be classed as work at ordinary hours that attract overtime rates rather than is overtime work.

[175] Interested parties are invited to file submissions by 4.00 pm on 31 October 2018. Submissions should be sent to [email protected]. The matter will then be determined on the papers, unless there is any objection to this course.

3. Next Steps

Ports, Harbours and Enclosed Vessels Award

[176] Interested parties are invited to file submissions on the issue dealt with at [160] – [174] of this decision. Parties have until 4.00 pm on 31 October 2018 to file their submissions. Submissions should be sent to [email protected]. The matter will then be determined on the papers, unless there is any objection to this course.

Sugar Award

[177] A conference will be held before Deputy President Asbury in relation to the issue outlined at [118] - [128] regarding the single contract hourly rate in this award.

Finalising Exposure Drafts

[178] All other outstanding matters for Group 3 awards are now resolved or are being dealt with by separately constituted Full Benches.

[179] Each exposure draft will be updated and republished. Parties will be provided with one final opportunity to comment on the technical and drafting aspects of the exposure drafts in respect of the Group 3 awards. This will not be an opportunity to reargue matters which have already been determined, but will provide interested parties with an opportunity to comment on variations made to the exposure drafts to incorporate decisions relating to common issues and any technical drafting issues determined in this decision.

[180] A Statement regarding the process for finalising the exposure drafts and concluding the award stage of the review will be issued in due course.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

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ATTACHMENT A—List of Group 3 awards by subgroup

 1   [2017] FWCFB 3433

 2   [2017] FWCFB 5536

 3   [2018] FWCFB 1405

 4   [2017] FWCFB 3433

 5   NTEU, submission, 8 June 2016

 6   [2018] FWC 1501

 7   Directions, 27 April 2018

 8   ABI and NSWBC submission, 19 April 2018

 9   [2018] FWCFB 2875

 10   AWU submission, 12 April 2018

 11   [2018] FWCFB 4695 and [2018] FWCFB 5846

 12   NFF submission, 17 April 2018

 13   NFF submission, 17 April 2018 (referring to [2009] AIRCFB 345 at [41])

 14   NFF submission, 17 April 2018

 15   NFF submission, 17 April 2018

 16   Ai Group submission, 14 April 2016, at para 337

 17   Ai Group submission, 24 November 2017, at para 3

 18   Ibid, at para 4

 19   ABI submission, 19 April 2018

 20   AWU submission, 12 April 2018

 21   NFF submission, 10 April 2018

 22   Exposure draft – Pastoral Award 2016, 15 January 2016.

 23   Statement [2018] FWC 1191

 24   AWU Submission, 17 April 2016 at paragraphs 28 – 31.

 25   NFF Submission in reply, 5 May 2016, at paragraph 29.

 26   ABI Submission in reply - Group 3 exposure drafts, 6 May 2016, at paragraph 19.5.

 27   NFF Further submission, 26 October 2016, at paragraphs 43 – 45.

 28   Decision [2017] FWCFB 3433 at paragraphs 219 – 228.

 29   Decision [2017] FWCFB 3433 at paragraph 228.

 30   Decision [2017] FWCFB 5536 at paragraph 337.

 31   [2017] FWCFB 5536 at paragraphs 336 – 338.

 32   Transcript – 9 February 2018 at PNs 95 – 127; Report 9 February 2018.

 33   Report – 9 February 2018.

 34   Statement [2018] FWC 1558.

 35   Statement [2018] FWC 1558.

 36   Statement [2018] FWC 1558.

 37   AWU Submission, 23 March 2018 at paragraph 3

 38   NFF Submission, 13 April 2018 at paragraph 6.

 39   NFF Submission, 13 April 2018 at paragraphs 7 - 8.

 40   NFF Submission, 13 April 2018 at paragraphs 9.

 41   NFF Submission, 13 April 2018 at paragraph 10.

 42   NFF Submission, 13 April 2018 at paragraph 11.

 43   Decision [2016] FWCFB 8463 at paragraph 159, Decision [2016] FWCFB 6836 at paragraphs 59 – 61.

 44   NFF Submission, 13 April 2018 at paragraph 15.

 45   NFF Submission, 13 April 2018 at paragraph 14.

 46   Statement [2018] FWC 1558 at paragraph 4.

 47   NFF Submission, 13 April 2018 at para 14a.

 48   AWU Submission, 23 March 2018 at para 5; ABI Submission, 6 April 2018 at para 1.1; Business SA Submission, 4 April 2018 at para 1.1, NFF Submission, 13 April 2018 at para 14b.

 49   Exposure Draft, published 2 November 2017.

 50   AWU Submission, 23 March 2018 at paragraph 6 and page 3.

 51   AWU Submission, 23 March 2018 at paragraph 7.

 52   ABI Submission, 6 April 2018 at paragraphs 2.1-2.2.

 53   Business SA Submission, 4 April 2018 at paragraph 2.4.

 54   AWU Submission, 23 March 2018 at paragraph 8.

 55   AWU Submission, 23 March 2018 at paragraphs 9-10.

 56   ABI Submission, 6 April 2018 at paragraph 3.1.

 57   AWU Submission, 23 March 2018 at paragraph 11.

 58   AWU Submission, 23 March 2018 at paragraph 12.

 59   AWU Submission, 17 April 2016 at paragraph 30.

 60   AWU Submission, 17 April 2016 at paragraph 31

 61   Decision [2017] FWCFB 3433 at 225 – 226

 62   NFF Submission, 13 April 2018 at paragraph 14c.

 63   NFF Submission, 13 April 2018 at paragraph 14d.

 64   NFF Submission, 13 April 2018 at paragraph 14e.

 65   ABI Submission, 6 April 2018 at paragraph 4.1; Business SA Submission, 4 April 2018 at paragraphs 3.1 – 3.3.

 66   ABI Submission, 6 April 2018 at paragraph 4.1.

 67   NFF Submission, 13 April 2018 at paragraph 14f.

 68   AWU Submission, 23 March 2018 at page 3.

 69   AWU Submission, 23 March 2018 at page 3.

 70   AWU Submission, 23 March 2018 at pages 3 – 4..

 71   AWU Submission, 23 March 2018 at page 4.

 72   AWU Submission, 23 March 2018 at page 4.

 73   AWU Submission, 23 March 2018 at page 4.

 74   ABI Submission, 6 April 2018 at paragraph 4.2; Business SA Submission, 4 April 2018 at paragraph 4.1.

 75   NFF Submission, 13 April 2018 at paragraph 14g.

 76   AMWU submission, 10 April 2018

 77   Ai Group submission, 10 April 2018

 78   [2018] FWCFB 1405

 79   AWU submission, 5 April 2018

 80   AMWU submission, 10 April 2018

 81   CEPU submission, 10 April 2018

 82   NFF submission, 10 April 2018

 83   The AWU made a further submission on 16 April 2018, highlighting a number of clauses that were correct. These have been corrected.

 84   AWU, submission, 21 July 2016, at para 10

 85   ABI submission, 19 April 2018

 86   AMWU submission, 10 April 2018

 87   AWU submission, 16 April 2018

 88   NFF submission, 10 April 2018

 89   AWU submission, 28 November 2017, paras 17-21

 90   AMWU submission, 10 April 2018, para 8

 91   NFF submission, 10 April 2018, para 5

 92   AWU submission, 16 April 2018, para 11

 93   AWU submission, 16 April 2018, para 13

 94  NFF, submission, 8 July 2016

 95   Ibid

 96   AWU submissions, 21 July 2016, paras 18–21

 97   AWU submission, 16 April 2018

 98   NFF submission, 10 April 2018

 99   NFF submission, 10 April 2018

 100   AWU submission, 16 April 2018 at para 16

 101   AWU submission, 16 April 2018 at para 18

 102   AWU submission, 17 April 2016

 103   [2017] FWCFB 5536 at [371]; [374]

 104   AWU submission, 17 April 2018, para 13

 105   NFF submission, 9 June 2016, para 29

 106   Submission – clause 10.4(a), 9 August 2018

 107   NFF submission, 9 June 2016, para 32

 108   Submission – clause 10.4(a), 9 August 2018

 109   Transcript, 30 July 2018 at PN5

 110   Transcript, 30 July 2018 at PN5

 111   Report to the Full Bench, 25 August 2016, at p 3

 112   Ai Group, submission, 24 November 2017, at paras 8-9

 113   [2018] FWCFB 5602 at [14]-[20]

 114   [2018] FWCFB 5602 at [20]

 115   NTEU, submission, 8 June 2016, at pp 3-4

 116   AHEIA, submission, 15 April 2016, at p 2

 117   [2018] FWC 1501

 118   Directions, 27 April 2018

 119   Background paper – rates for weekend work, 6 June 2018

 120   Transcript, 21 June 2018 at para [19]

 121   AEFI, Submission, 2 August 2018

 122   AEFI, Submission, 2 August 2018

 123   See MUA Submission, 14 April 2016, para 10.

 124   See AWU Submission, 18 April 2016, para 14.