DECISION

[37] The total number of persons employed in McDonald’s restaurants; Hungry Jacks corporate restaurants and Craveable Brands restaurants (collectively, the Major Fast Food Chains) was 131, 247 in early February 2018. As mentioned above, the August 2016 Census data shows that there were around 170, 000 employees in ‘Takeaway food services’. While the two data sources are referable to different points in time it can be safely inferred that the Major Fast Food Chains collectively employ a substantial majority (about three quarters) of all Fast Food industry employees.

4. The Evidence

4.1 The Witnesses

[38] Ai Group filed 10 affidavits in support of the claims, from 9 witnesses. 30 Of those witnesses, four were required for cross-examination.

Ian Flemington

[39] Mr Flemington is the Chief People Officer of Craveable Brands and has held that role since May 2015. 31 Craveable Brands operates company-owned and franchisee restaurants across Australia and New Zealand under the Oporto, Red Rooster and Chicken Treat brands. Mr Flemington gave evidence that the one Oporto corporate restaurant, 84 franchised Oporto restaurants, two Chicken Treat franchises and ‘a small number’ of Red Rooster franchises operate under the Fast Food Award. As at 5 February 2018, Craveable Brands employed 11,594 employees in all its restaurants (928 full-time, 3,594 part-time and 7,072 casual employees).

Annabel Sarah Anderson

[40] Ms Anderson is a Senior Employee Relations Advisor at McDonald’s Australia Limited (McDonald’s) and has held that role since 14 August 2017. 32 McDonald’s is comprised of company owned restaurants and franchised restaurants. As at 2 February 2018 there were 972 McDonald’s restaurants in Australia (151 company owned and 821 franchised). As at 6 February 2018 McDonald’s employed a total of 103,058 employees (6,849 full-time, 22,856 part-time and 73,021 casual employees). The McDonald’s Enterprise Agreement 2013 (McDonald’s Agreement) applied to all employees employed in the classifications of Crew Member, Crew Trainer or Maintenance, Delivery Driver, Shift Supervisor, Shift or Trainee Manager or Manager.

Nicola Agostino

[41] Mr Nicola Agostino is the sole director of Agostino Group Holdings (AGH), a role he has held since 2000. 33 As at 1 February 2018, AGH operated three franchised McDonald’s restaurants in Perth, Western Australia, all of which operate 24 hours a day, 7 days a week. As at 1 February 2018, AGH employed a total of 362 employees across the three restaurants (28 full-time, 121 part-time and 213 casual employees) all of whom are covered by the McDonald’s Australia Enterprise Agreement 2013.

Elizabeth Mary Montebello-Hunter

[42] Ms Montebello-Hunter is the National Field Human Resources Manager at Hungry Jack’s and has held that role since May 2017. 34 As at 1 February 2018 Hungry Jack’s operated 350 corporate restaurants and 73 restaurants were operated by franchisees. As at 1 February 2018 Hungry Jack’s corporate restaurants employed 16,134 employees (1,678 full-time, 14,067 part-time and 389 casual employees). The corporate restaurants operate under Enterprise Agreements35 (six of which Ms Montebello-Hunter was aware of) and the franchises operate either under Enterprise Agreements or the Fast Food Award.

Glenn Sullivan

[43] Mr Glenn Sullivan is a Food Operations Manager for Spargo Ten and Northern Food Service (Spargo and Northern), which operate four Hungry Jack’s franchised restaurants in Victoria and one in Queensland. 36 Mr Sullivan gave evidence that as at 1 February 2018, Spargo and Northern collectively employed 178 in all its restaurants (13 full-time, 0 part-time and 165 casual employees). Approximately 50 to 60 per cent of those employees are school-aged. All employees are employed under the Fast Food Award.

John Chapman

[44] Mr John Chapman is the Chief Executive Officer of Airport Retail Enterprises (ARE), which operates four Hungry Jack’s franchised restaurants. 37 As at 1 February 2018, ARE employed 123 employees across all its restaurants (11 full-time, 15 part-time and 97 casual employees). All employees are employed under the Fast Food Award.

Alexander Martinoli

[45] Mr Alexander Martinoli is the Department Manager of a McDonald’s restaurant located in Baulkham Hills, New South Wales and has held that position since 2016. 38 Mr Martinoli is employed on a part-time basis because he is studying full-time and works three eight hour shifts each week. Preparing the rosters for crew members at the restaurant is Mr Martinoli’s primary responsibility, but he also manages crew members and supervisors, interviews prospective employees and schedules training for new employees. The restaurant employs one full-time Restaurant Manager, 12 part-time crew members and 47 casual crew members. All employees are employed pursuant to the McDonald’s Australia Enterprise Agreement 2013.

Kate Swan

[46] Ms Kate Swan is a Certified Restaurant Trainer at Hungry Jack’s Pty Ltd and is employed on a full-time basis. 39 Ms Swan commenced employment with Hungry Jack’s in 2002 and has held various positions including Crew Member, Team Leader, Cadet Manager, Assistant Manager and Restaurant Manager. In her current role, Ms Swan is responsible for training managers in conducting recruitment interviews, cooking, roster preparation and facilitating Restaurant Managers moving into restaurant ownership. Ms Swan is based at the Cabramatta restaurant in Sydney but also works at other stores. Employees at the Cabramatta restaurant are employed under the SDA Hungry Jack’s New South Wales / ACT Agreement 2004.

Leasa Guilk

[47] Ms Leasa Guilk is the Restaurant Manager of a Hungry Jack’s restaurant in Blacktown, New South Wales and has held that position since November 2017. 40 The restaurant managed by Ms Guilk employs three full-time Assistant Managers and 61 part-time crew members. The store does not employ any casual employees. All employees are employed under the SDA Hungry Jack’s New South Wales / ACT Agreement 2004.

5. Ai Group Claim 1 – mechanism to change the end time of night shift

[48] Clause 25.5(a)(iii) of the Fast Food Award currently provides a 15 per cent loading for ordinary hours of work performed between midnight and 6.00am, as follows:

‘25.5 Penalty rates

(a) Evening work Monday to Friday

…

(ii) A loading of 15% will apply for ordinary hours of work between midnight and 6.00 am, and for casual employees this loading will apply in addition to their 25% casual loading.’

[49] As set out in the draft determination, Ai Group seeks to insert the following provision at the end of clause 25.5(a)(ii):

‘The evening penalty rate end time (6.00 am) may be altered by up to one hour at the end of the spread (up to 5.00 am), by agreement between an employer and the majority of employees concerned.’

[50] As initially put, Ai Group’s claim was to vary the end time for the evening penalty rate, from 6am to 5am, or, in the alternative, to insert a facilitative provision to allow an employer to reach agreement with a majority of employees to vary the end time of the evening penalty rate to 5am 41 (the ‘facilitation claim’). At a conference before Commissioner Lee on 1 December 2017 the SDA objected to us hearing Ai Group’s claim on the basis that the matter had been fully heard and determined by the Penalty Rates Full Bench. The SDA confirmed its objection in correspondence dated 13 December 2017 and asked that the Commission strike out this aspect of Ai Group’s claim.

[51] On 8 February 2018 we issued directions inviting supplementary submissions concerning the SDA’s objection. In response, Ai Group filed a submission on 9 February 2018 and the SDA filed a submission in reply on 20 February 2018. In a Statement issued on 1 March 2018 42 we rejected the SDA’s jurisdictional objection and indicated that we would publish the reasons for that decision later.43 We rejected the SDA’s jurisdictional objection because the facilitation claim before us is fundamentally different to the claim determined by the Penalty Rates Case Full Bench.

[52] The issue of the end time of the evening penalty rate was determined by a Full Bench of the Commission in the Penalty Rates Case. 44 The Full Bench inserted an end time into clause 25.5(a)(ii), and aligned that time with the end time for evening work in the Restaurant Industry Award 2010 (which it reduced from 7am to 6am). The Full Benchdid so in answer to 2 claims in respect of the evening penalty rate:

(i) a claim by Ai Group to adjust the commencing time of the evening penalty rate in clause 25.5(a)(i) of the Award from 9pm to 10pm; 45 and

(ii) a claim by RCI to vary clause 25.5(a) of the Award so that only a penalty rate of 5% would be paid for work between midnight and 5am. 46

[53] In dealing with RCI’s claim, the Full Bench noted that it was not submitted (at least expressly) that the variation proposed would lead to an increase in the operating hours of fast food businesses, or to an increase in employment. Nor did the Commission find there was much (if any) direct, probative evidence to support such a contention. 47

[54] In rejecting the claim by RCI, the Commission stated that a sufficient merit case had not been advanced to support the extent of the changes proposed. 48 At paragraph [1393] the Commission held that:

‘As mentioned earlier, RCI is also seeking to vary the late night penalty in the Restaurant Award in the same terms as its proposed variation to the Fast Food Award. We have dealt with that proposal in Chapter 7.4.5(i) of our decision and have decided that the current 15 per cent loading be payable between midnight and 6 am (not 7 am as it is in the current award term). We adopt the same view in respect of the Fast Food Award. We note that the Fast Food Award does not presently prescribe the span of hours during which the loading is paid. For the reasons set out above ([1331]-[1335]) we propose to align the span of hours in the Fast Food Award with that provided in the Restaurant Award.’

[55] As we have mentioned, the facilitation claim before us is fundamentally different to the claim determined in the Penalty Rates Case and on that basis we reject the SDA’s objection. We now turn to the submissions advanced in relation to the claim.

[56] Ai Group submits that the Fast Food Award should ‘facilitate the making of flexible working arrangements for employees by efficient means, including for employees working between 5.00am and 6.00am.’ It contended that the existing evening penalty clause does not facilitate the making of flexible working arrangements for large groups of employees by efficient means (given the number of employees making themselves available to work 5.00am to 6.00am) as there is no effective mechanism to efficiently adjust by agreement the penalty rate between 5.00am and 6.00am and on that basis it is argued that the current award provision is failing to achieve the modern awards objective.

[57] Ai Group submits that it is likely that the proposed facilitative provision would be utilised by participants in the fast food industry, given the terms of current enterprise agreements (such as the McDonald’s Agreement) that have adjusted by agreement the penalty rate such that it is not payable between 5.00am and 6.00am.

[58] Ai Group also submits that the need to consider contemporary circumstances is a favourable consideration, given the prevalence of McDonald’s employees making themselves available voluntarily to work 5.00am to 6.00am, without payment of a penalty for that period.

[59] The SDA and RAFFWU oppose the application contending, among other things, that it ‘would be strikingly unfair to employees’ and that no cogent reason supported by probative evidence has been advanced such as to demonstrate that it is necessary to amend the award in the manner proposed.

[60] The evidence supports the following findings:

(i) some employers in the fast food industry (such as some employers operating McDonald’s restaurants) open their restaurants between 5.00am and 6.00am as part of normal trading hours;

(ii) some employers in the fast food industry (including some employers operating McDonald’s restaurants) prepare their restaurants for opening between 5.00am and 6.00am; and

(iii) for one employer in the fast food industry (McDonald’s), there are as many as 10,962 employees each week day who make themselves available to work between 5.00am and 6.00am. Currently, that employer only requires an estimated 3,102 employees each week day to work between 5.00am and 6.00am.

[61] We also note Ms Anderson’s evidence that ‘the number of IFAs McDonald’s would need to make for employees available to work Monday to Friday between 5am and 6am as at 10 April 2018 was 12,545’. 49 We accept Ms Anderson’s evidence that if the Fast Food Award was not varied and McDonald’s operated under the award, then requiring an IFA to change the penalty rate end time from 5am to 6am, would involve:

‘significant administrative time and burden because it would require a written agreement signed by the parties (which would necessarily require time in negotiating, preparing and executing the agreement) in respect of over 10,000 individual employees. I estimate that it would take 10 minutes to negotiate, prepare and execute each agreement in respect of over 10,000 individual employees’ 50

[62] As we have mentioned, before varying a modern award the Commission must be satisfied that if the modern award is varied in the manner proposed then it would only include terms necessary to achieve the modern awards objective.

[63] The modern awards objective is to ‘ensure that modern awards, together with the NES, provide a fair and relevant minimum safety net of terms and conditions’, taking into account the particular considerations identified in paragraphs 134(1)(a)–(h) (the s.134 considerations). The central issue is if the Fast Food Award was varied as proposed by Ai Group would it provide a ‘fair and relevant minimum safety net’? Fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question. We now turn to the s.134 considerations.

[64] Section 134(1)(a) requires that we take into account ‘relative living standards and the needs of the low paid’. A threshold of two-thirds of median full-time wages provides a suitable benchmark for identifying the ‘low paid’ for the purpose of s.134(1)(a).⁵¹ We are satisfied that a substantial proportion of Fast Food industry employees are ‘low paid’.

[65] Ai Group submits that the proposed variation will not have an adverse impact on the relative living standards and the needs of the low paid and that s.134(1)(a) is a neutral consideration. Ai Group accepts that where an agreement is made between an employer and a majority of employees pursuant to the proposed facilitative provision, a reduction in the penalty rate between 5.00am and 6.00am will have an adverse impact on the relative living standards and needs of the low paid; but submits that such a reduction will only occur through the agreement of the majority of employees concerned (such that it is a consensual reduction) and will only be for a small amount (the loss of 15 per cent loading for one hour only).

[66] The reasoning advanced by Ai Group is fallacious. First, contrary to the submission put, it is not a ‘consensual reduction’. The change would be made with the agreement of a simple majority of the employees concerned. Those opposed to such a change would have the majority view imposed upon them. Second, Ai Group characterises the reduction as ‘for a small amount’ (the loss of 15 per cent loading for one hour only). While the sum may appear modest it must be seen from the perspective of the employees who would otherwise be entitled to the loading. Such employees are overwhelmingly low paid. Any reduction in their earnings is likely to have an adverse impact upon their capacity to meet their needs. In our view s.134(1)(a) tells against the proposed variation.

[67] Section 134(1)(b) requires the Commission to take into account ‘the need to encourage enterprise bargaining’. Ai Group contends that this is a neutral consideration and relies on various passages from the Penalty Rates Case in support of its position. Ai Group acknowledges that some of the major employers have addressed the issue by making and having approved an enterprise agreement containing for the non-payment of the penalty rate between 5.00am and 6.00am, but submits that:

‘there is no certainty that such enterprise agreements will continue in operation in the future or will be replaced by enterprise agreements with the same or similar terms in the future.’ 52

[68] Currently, under the McDonald’s Agreement, the evening penalty is only paid between 1.00am and 5.00am (see clause 28.3 of the McDonald’s Agreement) for crew and not for managers (see clause 28.4 of the McDonald’s Agreement). The McDonald’s restaurants do not experience difficulties in filling the shifts that cover 5.00am to 6.00am 53 and currently have more employees making themselves available for work between 5.00am and 6.00am than positions to be filled.54 On this basis it is submitted that the McDonald’s restaurants do not need to offer an incentive (such as a loading) to fill the period 5.00am to 6.00am.

[69] The Hungry Jacks Queensland Employee Collective Agreement 2009 provides that there is no ‘early work penalty’ in South East Queensland (see clause 15.2(c)) and that outside South East Queensland a 150 per cent penalty applies for ordinary time worked between 12:30am and 5:30am (see clause 15.3(c)). The SDA Hungry Jacks (South Australia and Northern Territory) Certified Agreement 1999 makes no provision for an early work penalty payment.

[70] We are not persuaded that varying the Fast Food Award in the manner proposed would encourage enterprise bargaining. As conceded by Ai Group, some of the major employers in the fast food industry have addressed this issue in their enterprise agreements. Varying the award in the manner proposed would mean that it would be unnecessary to have an enterprise agreement in order to address the issue raised; thus removing an incentive for fast food employers to engage in enterprise bargaining. This consideration weighs against making the variation proposed.

[71] Section 134(1)(c) requires that we take into account ‘the need to promote social inclusion through increased workforce participation’. The use of the conjunctive ‘through’ makes it clear that in the context of s.134(1)(c), social inclusion is a concept to be promoted exclusively ‘through increased workforce participation’. As the Expert Panel observed in the 2012-2013 Annual Wage Review decision⁵⁵ obtaining employment is the focus of this consideration.

[72] In its submission of 23 February 2018 Ai Group contends that s.134(1)(c) is concerned with additional employment and that ‘in light of the absence of material addressing the issue a neutral consideration’. 56 In a later submission (dated 18 July 2018) Ai Group submits:

‘the variation in end time (and the removal of the penalty rate) may lead to an employee receiving a greater number of hours worked over the week’ 57

[73] The Anderson Affidavit (Exhibit AiG 3 at [54](c)) is cited in support of this submission. The relevant passage from Ms Anderson’s affidavit states:

‘During the time I was at the Bexley Mc Donald’s restaurant, I had conversations with the employees who informed me that they preferred commencing work from 5am because:

…

(c) they desire to work more hours, and making themselves available to commence work at 5am provides them with more hours of work, and accordingly greater income.’

[74] In our view, Ms Anderson’s evidence does not support a finding that varying the Fast Food Award to introduce the facilitative provision would lead to increased employment (in terms of hours worked or number of persons employed). The consideration in s.134(1)(c) does not provide any support for the variation sought.

[75] It is convenient to deal with ss.134(1)(d) and (f) together.

[76] Section 134(1)(d) requires that we take into account ‘the need to promote flexible modern work practices and the efficient and productive performance of work’ and s.134(1)(f) requires that we take into account ‘the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden’. We note that s.134(1)(f) is expressed in very broad terms; it refers to the likely impact of any exercise of modern award powers ‘on business, including’ (but not confined to) the specific matters mentioned, that is, ‘productivity, employment costs and the regulatory burden’.

[77] Ai Group submits that, in terms of the insertion of the proposed facilitative provision into the Fast Food Award itself, it will not have a direct impact on business (see section 134(1)(f)), although it provides the potential for the making of an agreement pursuant to the proposed facilitative provision that could have a positive impact on business (through a reduction in employment costs between 5.00am and 6.00am).

[78] We accept that if the claim was granted, and the award variation sought was made, then an agreement made between an employer and a majority of employees pursuant to the proposed facilitative provision would result in a reduction in the penalty rate between 5.00am and 6.00am and a positive impact on the business as its employment costs will self-evidently fall. On that basis it is to be regarded as a favourable consideration. However, there is no evidence before us to suggest that the proposed variation will promote flexible work practices or the efficient and productive performance of work.

[79] Section 134(1)(da) requires that we take into account the ‘need to provide additional remuneration’ for:

‘(i) employees working overtime; or

(ii) employees working unsocial, irregular or unpredictable hours; or

(iii) employees working on weekends or public holidays; or

(iv) employees working shifts.’

[80] Ai Group submits that the need to provide additional remuneration for employees working unsocial hours or working shifts is a neutral consideration as:

•  the insertion of the proposed facilitative provision into the Fast Food Award itself will not affect the provision of additional remuneration for employees working unsocial hours or working shifts; and

•  the reduction in the penalty rate between 5.00am and 6.00am, where an agreement is made between an employer and a majority of employees concerned pursuant to the proposed facilitative provision, is a reflection of the fact that the employer and the majority of employees concerned do not regard the period of 5.00am to 6.00am to be unsocial hours or shift work hours that need to attract an evening penalty and is outweighed by other considerations affecting the employees concerned (such as the earlier finishing of ordinary hours of work ).

[81] Section 134(1)(da) was given detailed consideration in the Penalty Rates Case. 58 We generally adopt those observations and only propose to highlight three matters.

[82] First, s.134(1)(da) speaks of the ‘need to provide additional remuneration’ for employees performing work in the circumstances mentioned in s.134(1)(da)(i), (ii), (iii) and (iv). The expression ‘additional remuneration’ in this context means remuneration in addition to what employees would receive for working what are normally characterised as ‘ordinary hours’, that is reasonably predictable hours worked Monday to Friday within the ‘spread of hours’ prescribed in the relevant modern award. Such ‘additional remuneration’ could be provided by means of a penalty rate or loading paid in respect of hours worked at particular times (as is the case in clause 25.5 of the Fast Food Award).

[83] Second, the expression ‘the need for additional remuneration’ must be construed in context, and the context tells against the proposition that s.134(1)(da) requires additional remuneration be provided for working in the identified circumstances. Section s.134(1)(da) is a relevant consideration, it is not a statutory directive that additional remuneration must be paid to employees working in the circumstances mentioned in paragraphs 134(1)(da)(i), (ii), (iii) or (iv); rather, s.134(1)(da) is a consideration which we are required to take into account.

[84] The requirement to take a matter into account does not mean that the matter is necessarily a determinative consideration. This is particularly so in the context of s.134 because s.134(1)(da) is one of a number of considerations which we are required to take into account. No particular primacy is attached to any of the s.134 considerations. The Commission’s task is to take into account the various considerations and ensure that the modern award provides a ‘fair and relevant minimum safety net’.

[85] Third, the use of the disjunctive ‘or’ in s.134(1)(da)(ii) makes it clear that the provision is dealing with separate circumstances: ‘unsocial, irregular or unpredictable hours’ (emphasis added). Section 134(1)(da)(ii) requires that we take into account the need to provide additional remuneration for employees working in each of these circumstances. The expression ‘unsocial … hours’ would include working late at night and or early in the morning, given the extent of employee disutility associated with working at these times. ‘Irregular or unpredictable hours’ is apt to describe casual employment.

[86] As we have mentioned, clause 25.2(a)(ii) of the Fast Food Award provides additional remuneration for working between 5am and 6am (a 15% loading). This additional loading reflects the disutility associated with working the unsocial hours between 5am and 6am. To the extent that the variation sought would facilitate an arrangement in which no additional remuneration was provided for the working of unsocial hours, s.134(1)(da) tells against making the variation sought. The suggestion that such an arrangement would only be introduced by consent is no answer as the ‘consent’ is provided by majority agreement. Once a majority of employees have agreed to the removal of the penalty rate the entitlement is removed for all employees.

[87] Section 134(1)(g) requires that we take into account ‘the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards’.

[88] The SDA contends that s.134(1)(g) does not support the proposed variation. It submits that the proposed facilitative provision would introduce uncertainty into the Fast Food Award and points to the fact that the phrase ‘majority of employees concerned’ is ambiguous. We agree that there is some uncertainty as to how the majority provision would operate in practice; to that extent the proposed facilitative clause is not ‘easy to understand’ and accordingly s.134(1)(g) is a consideration which weighs against making the variation proposed.

[89] Section 134(1)(h) requires that we take into account ‘the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy’. The matters mentioned in s.134(1)(h) focus on the aggregate (as opposed to sectorial) impact of an exercise of modern award powers. The variation of the Fast Food Award in the manner proposed will not give rise to any significant impact on the national economy.

[90] In addition to the s.134 considerations, three general observations may be made about the fairness of the proposed facilitative provision,:

(i) there is no requirement to provide a corresponding benefit to compensate employees for the loss of the penalty payment (as would be required if the penalty payment was removed as part of an IFA or an enterprise agreement);

(ii) the decision to remove the penalty payment will be made by a majority of the employees, in circumstances where most of those entitled to vote on the proposition will not actually be working between 5am and 6am (for example, McDonald’s only require 3102 employees each day to work between 5am and 6am, out of a total of 103,136 employees); and

(iii) the vote will apparently bind future employees, in perpetuity, in circumstances where there is a significant turnover of employees. There does not appear to be any mechanism to provide future employees with any say in the matter.

[91] As to the last observation above, it is apparent from Chart 1 that it is likely that there is a higher turnover of employees in businesses covered by the Fast Food Award than in other sectors. Almost 40 per cent of employees in the Food and beverage services sector have been with their employer for less than a year (compared with about 22 per cent of employees in all industries). The Takeaway food services sector is characterised by a high proportion of part-time and young workers. About 85 per cent of ‘Fast Food’ employees work less than 35 hours per week (compared to 34.2 per cent for all employees) and just over 60 per cent of ‘Fast Food’ employees are young workers, aged 15 to 19 years (compared to only 5.8 per cent for all industries).

[92] In our view the proposed variation lacks merit. If the award was varied in the manner proposed by Ai Group it would not provide ‘a fair and relevant minimum safety net of terms and conditions’; it would not achieve the modern awards objective. In reaching this conclusion we have taken into account the s.134 considerations insofar as they are relevant to the claim. We reject the claim for those reasons.

5. Ai Group Claim 2 – Flexible Part-time Clause

[93] Ai Group seeks to delete the part-time employment provisions in the Award (clause 12) and insert a new ‘flexible part-time clause’. 59 A comparison between the current clause 12 and Ai Group’s proposed clause is set out at Attachment 5 to this decision. Clause 12 of the current Award provides:

‘12. Part-time employees

12.1 A part-time employee is an employee who:

(a) works less than 38 hours per week; and

(b) has reasonably predictable hours of work.

12.2 At the time of first being employed, the employer and the part-time employee will agree, in writing, on a regular pattern of work, specifying at least:

•  the number of hours worked each day;

•  which days of the week the employee will work;

•  the actual starting and finishing times of each day;

•  that any variation will be in writing;

•  that the minimum daily engagement is three hours; and

•  the times of taking and the duration of meal breaks.

12.3 Any agreement to vary the regular pattern of work will be made in writing before the variation occurs.

12.4 The agreement and any variation to it will be retained by the employer and a copy given by the employer to the employee.

12.5 An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.

12.6 An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 13—Casual employment.

12.7 A part-time employee employed under the provisions of this clause will be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed. All time worked in excess of the hours as agreed under clause 12.2 or varied under clause 12.3 will be overtime and paid for at the rates prescribed in clause 26—Overtime.’

[94] As set out in the draft determination, the clause Ai Group seeks to replace the current Award provisions with is as follows:

‘12. Part-Time Employment

12.1 A part time employee is an employee who:

(a) Works at least 8 but less than 38 hours per week;

(b) Has reasonably predictable hours of work; and

(c) Receives on a pro-rata basis, equivalent pay and conditions to those of full- time employees.

12.2 At the time of engagement, the employer and the part-time employee will agree in writing upon:

(a) the number of hours of work which are guaranteed to be provided and paid to the employee each week or, where the employer operates a roster, the number of hours of work which are guaranteed to be provided and paid to the employee over the roster cycle (the guaranteed minimum hours); and

(b) the days of the week, and the periods in each of those days, when the employee will be available to work the guaranteed minimum hours (the employee’s agreed availability).

12.3 The employee may not be rostered to work less than 3 consecutive hours in any shift.

12.4 The guaranteed minimum hours shall not be less than 8 hours per week.

12.5 Any change to the guaranteed minimum hours may only occur with written consent of the part-time employee.

12.6 Where there has been a genuine and ongoing change in the employee’s personal circumstances, the employee may alter the days and hours of the employee’s agreed availability on 14 days’ written notice to the employer. If the alteration to the employee’s agreed availability cannot reasonably be accommodated by the employer within the guaranteed minimum hours then, despite clause 12.2, those guaranteed minimum hours will no longer apply and the employer and the employee will need to reach a new agreement in writing concerning guaranteed minimum hours in accordance with clause 12.2.

12.7 An employee may be offered ordinary hours in addition to the guaranteed minimum hours (additional hours) within the employee’s agreed availability. The employee may agree to work those additional hours provided that:

(a) The additional hours are offered in accordance with clause 25 – Hours of Work and clause 26 - Rostering;

(b) The employee may not be rostered for work outside of the employee’s availability;

(c) Agreed additional hours are paid at ordinary rates (including any applicable penalties payable for working ordinary hours at the relevant times) and accrue entitlements such as annual leave and personal/carer’s leave;

(d) The agreement to work additional hours may be withdrawn by a part-time employee with 14 days written notice;

(e) Additional hours worked in accordance with this clause are not overtime; and

(f) Where there is a requirement to work overtime in accordance with clause 26, overtime rates will apply.

12.8 A part-time employee who immediately prior to (operative date of variation) has a written agreement with their employer for a regular pattern of hours is entitled to continue to be rostered in accordance with that agreement, unless that agreement is replaced by a new written agreement made in accordance with clause 12.2.

12.9 Where a part-time employee has over a period of at least 12 months regularly worked a number of ordinary hours that is in excess of the guaranteed minimum hours, the employee may request in writing that the employer agree to increase the guaranteed minimum hours. If the employer agrees to the request, the new agreement concerning guaranteed minimum hours will be recorded in writing. The employer may refuse the request only upon reasonable business grounds, and such refusal must be provided to the employee in writing and specify the grounds for refusal.

12.10 An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 13 – Casual Employment.

12.11 A part-time employee employed under the provisions of this clause must be paid for ordinary hours worked at the rate of 1/38th of the minimum weekly rate prescribed for the class of work performed.’

[95] The claim also seeks to insert a new clause 26—Rosters, as follows:

‘26. Rosters

26.1 A roster for part-time employees must be prepared by the employer and made available to the employee which sets out the name of each employee, the days of the week to be worked, and their start and finishing times.

26.2 The roster will be alterable by mutual consent at any time or by amendment of the roster on seven days’ notice.’

[96] It is also proposed that the existing clause 26.2 (dealing with when overtime shall be paid) be deleted and replaced by:

‘27.2 A full-time employee shall be paid overtime for all work as follows:

(a) In excess of:

(i) 38 hours per week or an average of 38 hours per week averaged over a four week period; or

(ii) five days per week (or six days in one week if in the following week ordinary hours are worked on not more than four days); or

(iii) eleven hours on any one day; or

(b) Before an employee's rostered commencing time on any one day; or

(c) After an employee’s rostered ceasing time on any one day; or

(d) Outside the ordinary hours of work.

27.3 A part-time employee shall be paid overtime for all work as follows:

(a) In excess of:

(i) 38 hours per week; or

(ii) five days per week (or six days in one week if in the following week ordinary hours are worked on not more than four days); or

(iii) eleven hours on any one day; or

(b) Hours worked by a part-time employee outside the employee’s availability; or

(c) Outside the ordinary hours of work.

27.4 A part time employee shall be paid overtime if directed to work:

(a) Before the employee's rostered commencing time on any one day; or

(b) After the employee’s rostered ceasing time on any one day.

27.5 Provided that no overtime penalty is payable for hours worked within the employee’s availability by the part-time employee in excess of the guaranteed minimum hours that are:

(a) rostered; or

(b) not rostered in advance but agreed to be worked consistent with clause 12.7.’

[97] There are six main points of difference between the current award provisions and Ai Group’s proposed clause:

(i) Ai Group’s proposed clause would introduce a minimum engagement of 8 hours per week for part-time employees (‘guaranteed minimum hours’) and those guaranteed minimum hours may only be varied by the employee’s written agreement.

(ii) The proposed clause does not require regular pattern of work (hours worked per day, on which day/s of the week, starting and finishing times) to be agreed at the commencement of employment, as is required by the current award. Instead, the proposed clause requires parties to agree in writing on the days of the week, and times on those days, that the employee is available to work the guaranteed minimum hours (‘employee’s agreed availability’).

(iii) Ai Group’s proposed clause would remove the requirement for all time worked by a part-time employee in excess of their agreed weekly hours (‘additional hours’) to be paid at overtime rates. Instead, subject to the limitations in proposed clause 12.7, the additional hours would be paid at ordinary rates;

(iv) Clause 12.3 of the current award requires any variation to an employee’s regular pattern of work to be agreed in writing before the variation occurs. Ai Group’s proposed clause alters this requirement in two ways:

•  An employee may change their agreed availability by giving 14 days’ written notice to the employer, if there has been a ‘genuine and ongoing change’ to the employee’s personal circumstances. If the employer cannot accommodate the amended availability, the parties must come to a new guaranteed minimum hours agreement.

•  Secondly, the proposed clause provides that additional hours may be worked by agreement but makes no provision for the form of that agreement and any record keeping;

(v) The proposed clause includes a ‘savings provision’ (in clause 12.8) which preserves part-time agreements in operation prior to the insertion of the proposed clause in the award.

(vi) The proposed clause inserts an additional provision that allows an employee, where they have regularly worked hours in excess of their guaranteed minimum hours, to make a written request that an employer increase the guaranteed minimum hours.

[98] The witness evidence before us is confined to the Major Fast Food Chains. As mentioned earlier, employment in the Fast Food sector is dominated by the Major Fast Food Chains (McDonald’s, Hungry Jacks corporate restaurants and Craveable Brands restaurants). No evidence was adduced from an independent fast food business, outside of the Major Fast Food Chains. The evidence relevant to this claim supports the following findings:

(i) The Major Fast Food Chains prepare crew rosters taking into account (among other things) the availabilities of employees (the hours that they inform their employers that they are available to work and which are ordinarily greater than the number of hours they actually work) and expected customer demand.

(ii) Employees in the Major Fast Food Chains change their availabilities regularly, including on a permanent or ongoing basis and a temporary basis.

(iii) Departures from rosters are common due to reasons such as “no shows” (employees not attending for a rostered shift), illness and injury and unpredicted customer demand.

(iv) Customer demand can fluctuate significantly for a variety of reasons, including special events (such as sporting events) and the weather. Some of these fluctuations are predictable and others are not.

(v) Many employers in the Major Fast Food Chains invite employees to work additional hours to those included in rosters so as to cover for other employee absences and unpredicted customer demand. The decisions on arranging alternative staffing need to be made and implemented quickly.

(vi) Some employers in the Major Fast Food Chains do not employ (and do not roster and do not use) part-time employees to meet changes in availabilities or predictable increases in customer demand due to the need to pay overtime to part-time employees working additional hours (that is, hours above their guaranteed minimum hours and the need to record changes to guaranteed minimum hours in writing.

[99] Ai Group submits that the Fast Food Award should facilitate the making of flexible working arrangements for employees, including in circumstances of other employee absences and of unpredicted customer demand which necessitate the implementation of staffing changes quickly and easily. It is submitted that the existing part-time clause in the Fast Food Award does not facilitate the making of flexible working arrangements for part-time employees as:

(i) it acts as a discouragement to the engagement of part-time employees and to the use of part-time employees to work additional hours; and

(ii) it imposes an impractical administrative burden on employers (in the form of the requirement to reduce to writing the agreement to work additional hours),

(iii) and is thereby failing to meet the modern awards objective.

[100] We note that in the Penalty Rates Case 60 the Full Bench accepted that in 2015 the Fast Food Industry consisted of 24, 654 enterprises across Australia and that there were about 1,000 – 1,300 McDonald’s and Hungry Jack’s establishments (comprising about 5 per cent of the enterprises in the industry). It follows, as observed by RAFFWU,61 that given the confined nature of the evidence in these proceedings there is no contemporaneous evidence before us about the use of casual and part time employees in the vast majority of fast food enterprises.

[101] Ai Group contends that the current part-time provisions, in particular the requirement for the employer and employee to agree in writing on the actual start and finish times of each day of work, is ‘impractical’. 62 Ai Group submits the proposed flexible part-time clause will meet the contemporary circumstances of the fast food industry, including the unpredictable fluctuations in customer demand and the need for speedy and easy decisions on, and implementation of, staffing changes and thus will be “relevant” for the purposes of s.134 of the Act.

[102] Ai Group also submitted that the proposed flexible part-time clause will enhance job and income security as it is likely to lead to the engagement of more part-time employees (who have the benefit of guaranteed minimum hours and thus guaranteed minimum pay) and the provision of more additional hours to part-time employees. In particular, Ai Group contends that many employees would benefit from part-time employment including:

(i) a guaranteed minimum number of hours of work and thus guaranteed income, 63 including a higher minimum number of hours than casuals.64

(ii) flexibility over the number of working hours worked, especially the ability to increase or decrease hours to suit their circumstances (given school and university commitments and family responsibilities). 65

(iii) accessing leave entitlements, 66 including to travel67 and to have time to study for exams.68

[103] We would observe here that there is a paucity of evidence regarding the views of actual employees about the proposed flexible part time clause.

[104] Ai Group also submits that the existing part-time clause in the Fast Food Award is ineffective as it fails to contain the clause modelled on the flexible part-time work clause recently inserted into the Hospitality Industry (General) Award 2010, the Restaurant Industry Award 2010 and the Registered and Licensed Clubs Award 2010 (collectively, the Hospitality Awards) consequent upon the Part-time and Casual Employment Decision 69 and Part-time and Casual Employment Further Matters Decision70 (together, the Casual/Part time Decisions) and is thereby failing to meet the modern awards objective. Indeed the variation sought by Ai Group in these proceedings has a number of features in common with the variations in the Hospitality Awards arising from the Casual/Part-time Decisions.

[105] It is convenient to deal with the last argument first.

[106] In our view the observations of the Full Bench in the Casual/Part-time decisions and the variations arising from that decision provide no warrant for varying the Fast Food Award in the manner proposed. Three points may be made in this regard.

[107] First, it is clear from the terms of s.156(5) that in the context of the 4 yearly review ‘each modern award is reviewed in its own right’.

[108] Second, in the Casual/Part-time Decisions the Full Bench made it clear 71 that it did not intend to depart from the general principle stated by the AIRC Full Bench in the Award Modernisation Decision of 4 September 2009 that as a matter of concept and principle, part time employment must carry with it a ‘degree of regularity and certainty of employment’ and that it ‘should be akin to full time employment in all respects except that the average weekly ordinary hours are fewer than 38’.72

[109] Third, the variations made by the Casual/Part-time Full Bench were based on the evidence led in those proceedings and the findings made as to the nature and circumstances of the industry sectors in questions.

[110] The last point is particularly pertinent. There are a number of characteristics of the Fast Food sector which are quite different from the characteristics of the industry sectors covered by the Hospitality Awards which were the subject of the proceedings before the Casual/Part-time Full Bench, in particular:

•  60.7 per cent of Fast Food employees are aged between 15 and 19 years;

•  the major Fast Food chains collectively employ a substantial majority (about three quarters) of all Fast Food industry employees;

•  the vast majority of employees employed by the major Fast Food chains are covered by enterprise agreements:

- the McDonalds Enterprise Agreement 2013 applies to employees of McDonalds and its franchisees who work in its Australian restaurants 73

- all of Hungry Jacks’ corporate restaurants are on enterprise agreements (as at 1 February 2018 there were 423 Hungry Jacks’ restaurants in operation in Australia of which 350 were corporate restaurants and 7 were operated by franchisees) 74

- virtually all employees of Red Rooster and its franchisees who work in its Australian restaurants as crew are covered by an enterprise agreement 75

- 22 Oporto franchisees are covered by enterprise agreements. 76

[111] As to the last point it is fair to say that enterprise agreements are the most common method of regulating employment in the Fast Food sector. We return to this observation later in our consideration of s.134(1)(b).

[112] We also note that Ai Group’s application is supported by the SDA (but opposed by RAFFWU). While the SDA’s position is relevant, it is far from decisive.

[113] In times past, awards were made in settlement of industrial disputes and the respondent parties to such awards were the parties to the relevant industrial dispute. The nature of modern awards under the Act is quite different from awards under previous legislative regimes 77 and they perform a very different function to that performed by awards of the past.

[114] Modern awards are not made to prevent or settle industrial disputes between particular parties. Rather, the purpose of modern awards, together with the National Employment Standards and national minimum wage orders, is to provide a safety net of fair, relevant and enforceable minimum terms and conditions of employment for national system employees (see ss.3(b) and 43(1)). Further, there are no named respondents to modern awards. Modern awards apply to, or cover, certain persons, organisations and entities (see ss.47 and 48), but these persons, organisations and entities are not ‘respondents’ to the modern award in the sense that there were named respondents to awards in the past. The nature of this shift is made clear by s.158 which sets out who may apply for the making of a determination making, varying or revoking a modern award. Under previous legislative regimes the named respondents to a particular award would automatically have the requisite standing to make such applications; that is no longer the case. 78 The shift in the nature and purpose of awards means that the weight to be given to the views of interested parties is, generally speaking, now less than it was previously.

[115] We now turn to the s.134 considerations.

[116] As we have mentioned, before varying a modern award the Commission must be satisfied that if the modern award is varied in the manner proposed then it would only include terms necessary to achieve the modern awards objective. The issue in contention is if the Fast Food Award was varied as proposed by Ai Group would it provide a ‘fair and relevant minimum safety net’? Fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question. The matters mentioned in s.134(1)(da), (e), (g) and (h) are neutral considerations in the present matter. No party contended to the contrary. 79 We now turn to the other s.134 considerations.

[117] Section 134(1)(a) requires that we take into account ‘relative living standards and the needs of the low paid’. A substantial proportion of Fast Food industry employees are ‘low paid’.

[118] Ai Group submits the proposed clause would not have an adverse impact on the needs low paid part-time employees. It is also contended that the proposed clause may enhance job and income security of casual employees, which, is submitted to weigh in favour of making the proposed variation.

[119] RAFFWU submits the proposed clause would have ‘a serious and detrimental impact’ on the needs of low paid employees. It is contended that these employees are more likely to be sensitive to the opportunity to work additional hours to supplement their income and make concessions to gain additional work. They are less likely to have the ability to secure flexible arrangements (such as short notice childcare). It is submitted that if Ai Group’s claim was granted, they would have increased uncertainty in their work hours and a reduction in opportunities to work overtime.

[120] As we have mentioned, there is a paucity of evidence regarding the views of actual employees about the proposed flexible part time clause. We accept that if the Fast Food Award was varied in the manner proposed by Ai Group then part time employees may be more likely to be required to work additional hours at ordinary rates (as opposed to overtime rates under the current clause). We would also observe that there are aspects of the proposed clause that are capable of visiting unfairness upon the employees who are subject to it, a point to which we shall return shortly. Against these considerations are the potential benefits identified by Ai Group, the most persuasive of which is the guaranteed minimum hours provision. Given the range of countervailing issues and the paucity of evidence we have concluded that this consideration is neutral to our assessment of the claim in the context of the modern awards objective.

[121] Section 134(1)(b) requires that we take into account ‘the need to encourage enterprise bargaining’. Ai Group and RAFFWU contend that this is a neutral consideration. 80 We disagree.

[122] Enterprise agreements are the most common method of regulating employment in the Fast Food sector. Further, a number of the Major Fast Food Chains have included flexible part time clauses in their enterprise agreements.

[123] The part-time clause in the McDonald’s Agreement requires that a roster include the “days of the week” on which the part-time employee will work (see clause 14.4 of the McDonald’s Agreement) and “actual starting and finishing time on each day” (see clause 14.4 of the McDonald’s Agreement) but allows the employer to “offer more hours of work” which the part-time may “elect” to accept (see clause 14.4 of the McDonald’s Agreement) and which, if accepted, is not required to be paid as overtime 81 Under the McDonald’s Agreement, the “actual starting and finishing times of each day”, if varied by the part-time employee “electing” to accept the “offer” of the employer, need not be agreed “in writing”.82

[124] Under the Hungry Jack’s enterprise agreements, the part-time clause permits the “number of ordinary hours” rostered to be worked by a part-time employee to be increased “by mutual agreement” (see, for example, clause 10(m) of the Hungry Jack’s NSW/ACT Agreement) and, subject to not exceeding limitations on daily or weekly hours, without payment of overtime rates. 83

[125] Under the Red Rooster Agreement 2009 (Red Rooster Agreement), the part-time clause permits the “number of ordinary hours” rostered to be worked by a part-time employee to be increased “by agreement” (see clause 9.6 of the Red Rooster Agreement) and, subject to not exceeding limitations on daily, weekly or fortnightly hours, without payment of overtime rates. 84

[126] Under the Chicken Treat Employees, SDA Agreement 2009 (Chicken Treat Agreement), the part-time clause permits the “number of ordinary hours” to be worked by a part-time employee to be increased “by agreement” (see clause 11(2) of the Chicken Treat Agreement) and, subject to not exceeding ten ordinary hours per day, without payment of overtime rates. 85 Under the Chicken Treat Agreement, the “agreement” need not be recorded in writing.86

[127] Section 134(1)(c) requires that we take into account ‘the need to promote social inclusion through increased workforce participation’. As mentioned earlier obtaining employment is the focus of this consideration. Ai Group submitted that in the absence of material addressing this issue it is a neutral consideration. We agree, there is simply no evidence before us going to the impact of the proposed variation on obtaining employment.

[128] We are not persuaded that varying the Fast Food Award in the manner proposed by Ai Group would encourage enterprise bargaining. Varying the award in the manner proposed would render it unnecessary to have an enterprise agreement to address what are said to be the inflexibilities in the current part time clause in the award; thus removing an incentive for fast food employers to engage in enterprise bargaining. This consideration weighs against making the variation proposed.

[129] Section 134(1)(d) requires that we take into account ‘the need to promote flexible modern work practices and the efficient and productive performance of work’ and s.134(1)(f) requires that we take into account ‘the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden’.

[130] Ai Group submits that the proposed flexible part-time clause could have a favourable impact on business (see section 134(1)(f)) by reducing overall employment costs (especially where a part-time employee is used to work additional hours, in comparison to the costs of a casual loading paid to casual employees) and on that basis it is submitted that this consideration supports the insertion of the proposed flexible part-time clause into the Fast Food Award.

[131] Section 134(f) requires us to consider the ‘likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden’. Ai Group submits the proposed clause may reduce overall employment costs and therefore have a positive impact on business, which weighs in favour of granting the claim. Ai Group submits the reduction in employment costs would be particularly evident where a part-time employee works additional hours under the proposed clause, in comparison to the engagement of a casual employee to perform those hours.

[132] The evidence also suggests that the Major Fast Food Chains would prefer to employ part-time employees (rather than casual employees) because of a greater knowledge and experience in restaurant operations, 87 better service provided to customers,88 a better attitude89 and a more team-inclusive approach.90 Some employers would provide part-time employees with additional hours to enable the training of other employees.91 Further, some employers believe that they will have better employee retention levels and lower on-boarding costs if they used part-time employees.92 These considerations also weigh in support of the proposed clause.

[133] We accept that if the claim was granted, it would have a positive impact on business and that this is a consideration which weighs in favour of varying the award in the manner proposed.

[134] In addition to the s.134 considerations some general observations can be made about the merit and fairness of the proposed flexible part time clause.

[135] Ai Group contends that its application is based on ‘industrial merit’ and includes:

‘the adoption of a standard clause that encompasses adequate protections for employees but retains flexibility for employers, as well as the encouragement of part time employment in circumstances where casuals are often used to work additional hours’ 93

[136] Given the basis of its application, that is, industrial merit, Ai Group submits that there is no (or a limited) need for evidence in support of its application, 94 in particular:

‘There is no need for employers or franchisors to consult widely with employees or franchisees as part of gathering evidence in support of its application’. 95

[137] We propose to make two general observations about the ‘industrial merit’ and fairness of the proposed claim.

[138] First, if granted the claim would permit an employer to roster part time employees within the range of the ‘employee’s agreed availability’. If the variation were granted it would effectively mean that a part time employee would have to be available to work at any time within the range of their stated availability and that the times they could be required to work may change from week to week.

[139] An example serves to illustrate the breadth of the proposed clause. Say the agreed guaranteed minimum hours are 9 hours per week and the employee’s agreed availability is between 9am and 3pm Monday, Wednesday and Friday. Under the proposed clause an employee may be rostered to work their guaranteed minimum hours in any one of a number of figurations, including:

•  9am to 12 noon Monday, Wednesday and Friday;

•  9am to 3pm Monday and 12 noon to 3pm Friday;

•  12 noon to 3pm Monday, Wednesday and Friday.

[140] Further, the employees’ roster may change from week to week.

[141] This aspect of the proposed clause is very different to the existing part time employment clause in the Fast Food Award (clause 12, see [93] above). The existing clause mandates that the employer and the part time employee agree on ‘a regular pattern of work’ which specifies:

•  the number of hours worked each day;

•  which days of the week the employee will work;

•  the actual starting and finishing times of each day;

•  that any variation will be in writing;

•  that the minimum daily engagement is three hours; and

•  the times of taking and the duration of meal breaks.

[142] Any change to the agreed ‘regular pattern of work’ must be by agreement, in writing, before the change occurs.

[143] The existing part time clause is consistent with the general principle stated by the AIRC Full Bench in the Award Modernisation Decision of 4 September 2009, in that is provides part time employees with a ‘degree of regularity and certainty’. It seems to us that the proposed flexible part time clause provides little certainty as to when guaranteed minimum hours will be worked. Indeed the proposed clause may facilitate working arrangements which are more akin to casual employment rather than part time employment, albeit without the requirement to pay a casual loading.

[144] It is no answer to this criticism to suggest that the employee exercises control over their working arrangements by specifying their availability. We do not doubt that as a practical matter, employees would feel some pressure to maximise their stated availability in order to obtain employment. Further, the capacity for an employee to alter their ‘agreed availability’ is significantly constrained by the proposed clause, which is the second general observation which we wish to make.

[145] Proposed clause 12.6 places a significant constraint on an employee’s capacity to alter the days and hours of their ‘agreed availability’, in particular:

•  there must have been a ‘genuine and ongoing change to the employee’s personal circumstances’; and

•  the employee must give the employer 14 days’ written notice.

[146] Nor is there any obligation upon the employer to accept a proposed alteration – if it cannot ‘reasonably be accommodated by the employer’ then the employer and employee need to reach a new agreement concerning guaranteed minimum hours.

[147] The constraints imposed by proposed clause 12.6 are particularly problematic in view of the evidence in these proceedings. That evidence supports a finding that employees in the Major Fast Food Chains change their availabilities regularly, including on a permanent or ongoing basis and a temporary basis. 96 The reasons for permanent or ongoing changes include changes in school or university timetabling and commitments97 as well as sporting commitments.98 The reasons for temporary changes include studying for school or university examinations,99 taking school and university holidays100 and attending family or social commitments.101

[148] In our view the proposed variation lacks merit. If the award was varied in the manner proposed by Ai Group it would not provide ‘a fair and relevant minimum safety net of terms and conditions’; it would not achieve the modern awards objective. In reaching this conclusion we have taken into account the s 134 considerations, insofar as they are relevant to the claim. We reject the claim for those reasons.

[149] In doing so we are also conscious that s.138 provides that a modern award may only include terms ‘to the extent necessary to achieve the modern awards objective. As noted by the Full Federal Court in Anglo American:

‘The words “only to the extent necessary” in s.138 emphasise the fact that it is the minimum safety net and minimum wages objective to which the modern awards are directed. Other terms and conditions beyond the minimum are to be the product of enterprise bargaining, and enterprise agreements under Pt 2-4.’ 102

[150] As we have mentioned, the evidence in these proceedings shows the vast majority of employees in the Major Fast Food Chains are covered by enterprise agreements. Further, a number of those agreements include ‘flexible’ part time provisions. Such enterprise agreements allow part time work provisions to be suitably framed such as to accommodate the employer practices. The demonstrated capacity of the Major Fast Food Chains to enter into enterprise agreements to address what are said to be inflexibilities in the current part time clause is a consideration which also tells against the proposition that the proposed variation is necessary to ensure that the Fast Food Award achieves the modern awards objective.

[151] But the rejection of Ai Group’s proposed clause is not the end of the matter. We see merit in the provision of guaranteed minimum hours for part time employees and in the simplification of the requirements attaching to the variation of a part time employee’s agreed regular pattern of work. It is our provisional view that the current award places unwarranted restrictions on the capacity to vary part time hours.

[152] As to the last matter, the evidence before us suggests that the requirement for the employer and the employee to agree in writing to variations in actual hours before they occur is impracticable and imposes an administrative burden upon employers. 103

[153] The existing award provisions which warrant examination are 12.3 and 12.4,:

‘12.3 Any agreement to vary the regular pattern of work will be made in writing before the variation occurs.

12.4 The agreement and any variation to it will be retained by the employer and a copy given by the employer to the employee.’

[154] It is our provisional view that:

•  agreed variations need not be recorded before the variation occurs – it should be sufficient to record the variation at the end of the relevant shift.

•  it is unnecessary to provide a copy of the agreed variation to the employee, it is sufficient if a record is retained by the employer.

•  some clarification as to the meaning of ‘in writing’ may be appropriate.

[155] As to the last point we note that the Part time/Casuals Full Bench varied clause 25.5(c) of the Social, Community, Home Care and Disability Services Industry Award 2010 in order to clarify that:

‘“rostering arrangement and changes to rosters” may be communicated by any electronic means of communication (for example, by text message) and that an equivalent provision to clause 25.5(c), as varied, be included in clause 22.6 of the Aged Care Award.’ 104

[156] Clause 22.6(f) of the Aged Care Award 2010 (as varied) states:

‘(f) Rostering arrangements and changes to rosters may be communicated by telephone, direct contact, mail, email, facsimile or any electronic means of communication.’

[157] Whilst the above provision relates to roster changes it may also have some utility in the context of variations to an employee’s agreed regular pattern of work.

[158] A conference will be convened by Deputy President Masson in relation to the two issues mentioned in [151] shortly. The purpose of the conference is to provide interested parties with an opportunity to comment on the provisional views expressed at [151] and [154] above and to discuss the drafting of an appropriate variation to give effect to those provisional views in the event they are ultimately confirmed by the Full Bench.

[159] The conference is not an opportunity to reagitate the matters determined in this decision.

PRESIDENT

Appearances:

29 June 2018

Ms S Kelly, for the Retail and Fast Food Workers Union (RAFFWU)

Mr H Dixon, with Mr A Gotting for the Australian Industry Group (Ai Group)

16 July

Mr H Dixon SC, with Mr A Gotting for the Ai Group

Mr D Bruno, for the Shop Distributive and Allied Employees’ Association (SDA)

Mr J Cullinan, for RAFFWU

19 July

Ms S Kelly, for RAFFWU

Mr H Dixon, with Mr A Gotting for the Ai Group

Mr D Bruno, for the SDA

Hearing details:

29 June 2018 – Melbourne

16 July 2018 – Sydney

19 July 2018 – Sydney

Final written submissions:

Ai Group, 2 August 2018

SDA, 26 July 2018

RAFFWU, 26 July 2018

Printed by authority of the Commonwealth Government Printer

<PR703917>

ATTACHMENT 1: AI GROUP DRAFT VARIATION DETERMINATION

DRAFT DETERMINATION

Fair Work Act 2009

s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Fast Food Award 2010 (MA000003)

(AM2017/49)

JUSTICE ROSS, PRESIDENT SYDNEY, XX XXXX 2018

4 yearly review of modern awards – Fast Food Award 2010 (MA000003).

A. Further to the decision issued on [insert date]1 it is ordered that, pursuant to s.156(2)(b)(i) of the Fair Work Act 2009, the Fast Food Industry Award 20102 be varied by:

1. Deleting existing clause 12.

2. Inserting new clause 12:

12. Part-Time Employment

12.1 A part time employee is an employee who:

(a) Works at least 8 but less than 38 hours per week;

(b) Has reasonably predictable hours of work; and

(c) Receives on a pro-rata basis, equivalent pay and conditions to those of full- time employees.

12.2 At the time of engagement, the employer and the part-time employee will agree in writing upon:

(a) the number of hours of work which are guaranteed to be provided and paid to the employee each week or, where the employer operates a roster, the number of hours of work which are guaranteed to be provided and paid to the employee over the roster cycle (the guaranteed minimum hours); and

(b) the days of the week, and the periods in each of those days, when the employee will be available to work the guaranteed minimum hours (the employee’s agreed availability).

12.3 The employee may not be rostered to work less than 3 consecutive hours in any shift.

12.4 The guaranteed minimum hours shall not be less than 8 hours per week.

12.5 Any change to the guaranteed minimum hours may only occur with written consent of the part-time employee.

12.6 Where there has been a genuine and ongoing change in the employee’s personal circumstances, the employee may alter the days and hours of the employee’s agreed availability on 14 days’ written notice to the employer. If the alteration to the employee’s agreed availability cannot reasonably be accommodated by the employer within the guaranteed minimum hours then, despite clause 12.2, those guaranteed minimum hours will no longer apply and the employer and the employee will need to reach a new agreement in writing concerning guaranteed minimum hours in accordance with clause 12.2.

12.7 An employee may be offered ordinary hours in addition to the guaranteed minimum hours (additional hours) within the employee’s agreed availability. The employee may agree to work those additional hours provided that:

(a) The additional hours are offered in accordance with clause 25 – Hours of Work and clause 26 - Rostering;

(b) The employee may not be rostered for work outside of the employee’s availability;

(c) Agreed additional hours are paid at ordinary rates (including any applicable penalties payable for working ordinary hours at the relevant times) and accrue entitlements such as annual leave and personal/carer’s leave;

(d) The agreement to work additional hours may be withdrawn by a part-time employee with 14 days written notice;

(e) Additional hours worked in accordance with this clause are not overtime; and

(f) Where there is a requirement to work overtime in accordance with clause 26, overtime rates will apply.

12.8 A part-time employee who immediately prior to (operative date of variation) has a written agreement with their employer for a regular pattern of hours is entitled to continue to be rostered in accordance with that agreement, unless that agreement is replaced by a new written agreement made in accordance with clause 12.2.

12.9 Where a part-time employee has over a period of at least 12 months regularly worked a number of ordinary hours that is in excess of the guaranteed minimum hours, the employee may request in writing that the employer agree to increase the guaranteed minimum hours. If the employer agrees to the request, the new agreement concerning guaranteed minimum hours will be recorded in writing. The employer may refuse the request only upon reasonable business grounds, and such refusal must be provided to the employee in writing and specify the grounds for refusal.

12.10 An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 13 – Casual Employment.

12.11 A part-time employee employed under the provisions of this clause must be paid for ordinary hours worked at the rate of 1/38th of the minimum weekly rate prescribed for the class of work performed.

3. In sub-clause 25.5(a)(ii), inserting after the words “25% causal loading.” of clause 25.5(a)(ii):

The evening penalty end time (6.00 am) may be altered by up to one hour at the end of the spread (up to 5.00am), by agreement between an employer and the majority of employees concerned.

4. Inserting a new clause after clause 25:

26. Rosters

26.1 A roster for full-time and part-time employees must be prepared by the employer and made available to the employee which sets out the name of each employee, the days of the week to be worked, and their start and finishing times.

26.2 The roster will be alterable by mutual consent at any time or by amendment of the roster on seven days’ notice.

5. Renumbering existing clauses 26 to 31 (inclusive), as clauses 27 to 32.

6. Deleting existing clause 26.2 (renumbered 27.2 in accordance with 5, above) and inserting the following new clauses:

27.2 A full-time employee shall be paid overtime for all work as follows:

(a) In excess of:

(i) 38 hours per week or an average of 38 hours per week averaged over a four week period; or

(ii) five days per week (or six days in one week if in the following week ordinary hours are worked on not more than four days); or

(iii) eleven hours on any one day; or

(b) Before an employee's rostered commencing time on any one day; or

(c) After an employee’s rostered ceasing time on any one day; or

(d) Outside the ordinary hours of work.

27.3 A part-time employee shall be paid overtime for all work as follows:

(a) In excess of:

(i) 38 hours per week; or

(ii) five days per week (or six days in one week if in the following week ordinary hours are worked on not more than four days); or

(iii) eleven hours on any one day; or

(b) Hours worked by a part-time employee outside the employee’s availability; or

(c) Outside the ordinary hours of work.

27.4 A part time employee shall be paid overtime if directed to work:

(a) Before the employee's rostered commencing time on any one day; or

(b) After the employee’s rostered ceasing time on any one day.

27.5 Provided that no overtime penalty is payable for hours worked within the employee’s availability by the part-time employee in excess of the guaranteed minimum hours that are:

(a) rostered; or

(b) not rostered in advance but agreed to be worked consistent with clause 12.7.

7. Renumbering existing clauses 26.3 to 26.6 (inclusive) as clauses 27.6 to 27.9.

B. This determination comes into effect on [insert date].

PRESIDENT

1 [insert citation].

2 MA000003.

ATTACHMENT 2: Submissions

Ai Group:

•  Outline of submission (23 February 2018, amended 12 July 2018);

•  Submission in reply (12 July 2018);

•  Findings sought (12 July 2018);

•  Response to questions (18 July 2018);

•  Submission in reply (18 July 2018); and

•  Submission in reply (2 August 2018).

Shop, Distributive and Allied Employees Association:

•  Submission (20 February 2018);

•  Submission (16 March 2018);

•  Submission in reply (18 July 2018); and

•  Submission in reply (26 July 2018).

Retail and Fast Food Workers Union:

•  Submission (undated; filed 9 March 2018);

•  Correspondence (undated; filed 18 July 2018); and

•  Submission in reply (undated; filed 26 July 2018).

ATTACHMENT 3: Ai Group Affidavits

•  Mr Ian Flemington (Exhibit Ai Group 1) (Examination in Chief and Cross Examination at Transcript 29 June 2018 at PN111–PN537);

•  Ms Annabel Anderson (Exhibit Ai Group 4; Supplementary Affidavit Exhibit Ai Group 5) (Examination in Chief and Cross Examination at Transcript 16 July 2018 at PN612–PN1178);

•  Mr Nicola Agostino (Exhibit Ai Group 6) (Examination in Chief and Cross Examination at Transcript 16 July 2018 at PN1183–PN1447);

•  Ms Elizabeth Montebello-Hunter (Exhibit Ai Group 7) (Examination in Chief and Cross Examination at Transcript 16 July 2018 at PN1464–PN1703);

•  Mr Glenn Norman Sullivan (Exhibit Ai Group 9);

•  Mr John Francis Chapman (Exhibit Ai Group 10);

•  Mr Alexander Martinoli (Exhibit Ai Group 11);

•  Ms Kate Nicole Swan (Exhibit Ai Group 12); and

•  Ms Leasa Kate Frances Guilk (Exhibit Ai Group 13).

ATTACHMENT 4: Fast Food Industry Profile

The following information presents an update on the profile of a ‘typical’ Fast Food industry employee as published in the Penalty Rates Case Decision. 105

A paper by Fair Work Commission staff provides a framework for ‘mapping’ modern award coverage to the ANZSIC. Using this framework the Fast Food Award is ‘mapped’ to the Takeaway food services industry class, which is at the ANZSIC 4 digit level. 106.

The ABS Census of Population and Housing (Census) is the only data source with information on employment at Takeaway food services level. The most recent Census data is from August 2016.

The August 2016 Census data show that there were around 170 000 employees in Takeaway food services. Table 1 compares characteristics available in the Census of employees in the Takeaway food services industry class, with employees in ‘all industries’.

Table 1: Employee characteristics of the Takeaway food services industry class, 9 August 2016

	Takeaway food services		All industries
	(No.)	(%)	(No.)	(%)
Gender
Male	76 461	44.9	4 438 604	50.0
Female	93 762	55.1	4 443 125	50.0
Total	170 223	100.0	8 881 729	100.0
Full-time/part-time status
Full-time	23 345	14.4	5 543 862	65.8
Part-time	138 438	85.6	2 875 457	34.2
Total	161 783	100.0	8 419 319	100.0
Highest year of school completed
Year 12 or equivalent	82 206	48.8	5 985 652	68.1
Year 11 or equivalent	29 433	17.5	856 042	9.7
Year 10 or equivalent	34 907	20.7	1 533 302	17.4
Year 9 or equivalent	18 321	10.9	273 180	3.1
Year 8 or below	3381	2.0	112 429	1.3
Did not go to school	336	0.2	26 356	0.3
Total	168 584	100.0	8 786 961	100.0
Student status
Full-time student	100 952	59.6	715 436	8.1
Part-time student	7353	4.3	491 098	5.6
Not attending	61 091	36.1	7 618 177	86.3
Total	169 396	100.0	8 824 711	100.0
Age (5 year groups)
15–19 years	103 385	60.7	518 263	5.8
20–24 years	31 992	18.8	952 161	10.7
25–29 years	11 331	6.7	1 096 276	12.3
30–34 years	6104	3.6	1 096 878	12.3
35–39 years	3899	2.3	972 092	10.9
40–44 years	3592	2.1	968 068	10.9
45–49 years	3212	1.9	947 187	10.7
50–54 years	2785	1.6	872 485	9.8
55–59 years	2083	1.2	740 822	8.3
60–64 years	1265	0.7	469 867	5.3
65 years and over	545	0.3	247 628	2.8
Total	170 193	100.0	8 881 727	100.0
Average age	22.0		39.3
Hours worked
1–15 hours	92 643	57.3	977 997	11.6
16–24 hours	28 821	17.8	911 318	10.8
25–34 hours	16 977	10.5	986 138	11.7
35–39 hours	10 329	6.4	1 881 259	22.3
40 hours	7448	4.6	1 683 903	20.0
41–48 hours	2699	1.7	858 120	10.2
49 hours and over	2861	1.8	1 120 577	13.3
Total	161 778	100.0	8 419 312	100.0

•  Source: ABS, Census of Population and Housing, 2016

•  Note: Part-time work in the Census is defined as employed persons who worked less than 35 hours in all jobs during the week prior to Census night. Information on employment type is collected for persons aged 15 years and over.

•  Totals may not sum to the same amount due to non-response. For full-time/part-time status and hours worked, data on employees that were currently away from work (that reported working zero hours), were not presented.

The profile of Fast Food employees differs from the profile of employees in ‘All industries’ in four important respects:

•  around 86 per cent of Fast Food employees work part time (i.e. less than 35 hours per week), compared to only 34.2 per cent of all employees;

•  more than half (57.3 per cent) of Fast Food employees work 1–15 hours per week and three-quarters (75.1 per cent) work 1–24 hours per week, compared to only 11.6 per cent and 22.4 per cent respectively of all employees;

•  over six in ten (60.7 per cent) Fast Food employees are aged between 15 and 19 years, and 79.5 per cent are aged between 15 and 24 years, compared with only 5.8 per cent and 16.6 per cent respectively of all employees; and

•  almost two-thirds (63.9 per cent) of Fast Food employees are students (59.6 per cent are full time students and 4.3 per cent study part time) compared to 13.7 per cent of all employees.

Changes in employee characteristics over time

Between 2011 and 2016, employment within the Takeaway food services industry class has fallen by around 5000. 107

Over this period, the Takeaway food services industry class has experienced an increase in the proportion of part-time employment (from 79.7 per cent to 85.6 per cent) and full-time students (from 51.1 per cent to 59.6 per cent). The Takeaway food services industry also experienced an increase in employees that work 1–15 hours per week (from 49.6 per cent to 57.3 per cent) and employees aged between 15 and 24 years (from 71.1 per cent to 79.5 per cent). 108

ATTACHMENT 5: Comparison between current clause 12 and Ai Group’s proposed clause

Comparison of Fast Food Industry Award 2010 to part-time variations sought by The Australian Industry Group

Clause	Fast Food Industry Award 2010	Variations sought by The Australian Industry Group in Draft Determination dated 24 April 2018
Definition of part time employee	12.1 A part-time employee is an employee who: (a) works less than 38 hours per week; and (b) has reasonably predictable hours of work.	12.1 A part time employee is an employee who: (a) Works at least 8 but less than 38 hours per week; (b) Has reasonably predictable hours of work; and (c) Receives on a pro-rata basis, equivalent pay and conditions to those of full- time employees.
Agreement on engagement	12.2 At the time of first being employed, the employer and the part-time employee will agree, in writing, on a regular pattern of work, specifying at least: ● the number of hours worked each day; ● which days of the week the employee will work; ● the actual starting and finishing times of each day; ● that any variation will be in writing; ● that the minimum daily engagement is three hours; and ● the times of taking and the duration of meal breaks.	12.2 At the time of engagement, the employer and the part-time employee will agree in writing upon: (a) the number of hours of work which are guaranteed to be provided and paid to the employee each week or, where the employer operates a roster, the number of hours of work which are guaranteed to be provided and paid to the employee over the roster cycle (the guaranteed minimum hours); and (b) the days of the week, and the periods in each of those days, when the employee will be available to work the guaranteed minimum hours (the employee’s agreed availability).
Minimum engagement	12.5 An employer is required to roster a part-time employee for a minimum of three consecutive hours on any shift.	12.3 The employee may not be rostered to work less than 3 consecutive hours in any shift.
Guaranteed minimum hours	No equivalent clause	12.4 The guaranteed minimum hours shall not be less than 8 hours per week.
Variation to work	12.3 Any agreement to vary the regular pattern of work will be made in writing before the variation occurs.	12.4 Any change to the guaranteed minimum hours may only occur with written consent of the part-time employee.
Variation to work	12.4 The agreement and any variation to it will be retained by the employer and a copy given by the employer to the employee.	No equivalent clause
Change to guaranteed minimum hours	No equivalent clause	12.6 Where there has been a genuine and ongoing change in the employee’s personal circumstances, the employee may alter the days and hours of the employee’s agreed availability on 14 written notice to the employer. If the alteration to the employee’s agreed availability cannot reasonably be accommodated by the employer within the guaranteed minimum hours then, despite clause 12.2, those guaranteed minimum hours will no longer apply and the employer and the employee will need to reach a new agreement in writing concerning guaranteed minimum hours in accordance with clause 12.2.
Additional hours	No equivalent clause	12.7 An employee may be offered ordinary hours in addition to the guaranteed minimum hours (additional hours) within the employee’s agreed availability. The employee may agree to work those additional hours provided that: The additional hours are offered in accordance with clause 25 – Hours of Work and clause 26 - Rostering; The employee may not be rostered for work outside of the employee’s availability; Agreed additional hours are paid at ordinary rates (including any applicable penalties payable for working ordinary hours at the relevant times) and accrue entitlements such as annual leave and personal/carer’s leave; The agreement to work additional hours may be withdrawn by a part-time employee with 14 days written notice; Additional hours worked in accordance with this clause are not overtime; and Where there is a requirement to work overtime in accordance with clause 26, overtime rates will apply.
Continuation of regular pattern of hours	No equivalent clause	12.8 A part-time employee who immediately prior to (operative date of variation) has a written agreement with their employer for a regular pattern of hours is entitled to continue to be rostered in accordance with that agreement, unless that agreement is replaced by a new written agreement made in accordance with clause 12.2.
Increase to guaranteed minimum hours	No equivalent clause	12.9 Where a part-time employee has over a period of at least 12 months regularly worked a number of ordinary hours that is in excess of the guaranteed minimum hours, the employee may request in writing that the employer agree to increase the guaranteed minimum hours. If the employer agrees to the request, the new agreement concerning guaranteed minimum hours will be recorded in writing. The employer may refuse the request only upon reasonable business grounds, and such refusal must be provided to the employee in writing and specify the grounds for refusal.
Casual Employees	12.6 An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 13 —Casual employment.	12.10 An employee who does not meet the definition of a part-time employee and who is not a full-time employee will be paid as a casual employee in accordance with clause 13 – Casual Employment.
Pro-rata rate and overtime	12.7 A part-time employee employed under the provisions of this clause will be paid for ordinary hours worked at the rate of 1/38th of the weekly rate prescribed for the class of work performed. All time worked in excess of the hours as agreed under clause 12.2 or varied under clause 12.3 will be overtime and paid for at the rates prescribed in clause 26 - Overtime.	12.11 A part-time employee employed under the provisions of this clause must be paid for ordinary hours worked at the rate of 1/38th of the minimum weekly rate prescribed for the class of work performed.
Rosters	No equivalent clause	26.1 A roster for full-time and part-time employees must be prepared by the employer and made available to the employee which sets out the name of each employee, the days of the week to be worked, and their start and finishing times.
Rosters	No equivalent clause	26.2 The roster will be alterable by mutual consent at any time or by amendment of the roster on seven days’ notice.
Overtime	26.2 A full-time or part-time employee shall be paid overtime for all work as follows: (a) In excess of: (i) 38 hours per week or an average of 38 hours per week averaged over a four week period; or (ii) five days per week (or six days in one week if in the following week ordinary hours are worked on not more than four days); or (iii) eleven hours on any one day; or	27.2 A full-time employee shall be paid overtime for all work as follows: (a) In excess of: 38 hours per week or an average of 38 hours per week averaged over a four week period; or five days per week (or six days in one week if in the following week ordinary hours are worked on not more than four days); or eleven hours on any one day; or
Overtime	(b) Before an employee's rostered commencing time on any one day; or	(b) Before an employee's rostered commencing time on any one day; or
Overtime	(c) After an employee’s rostered ceasing time on any one day; or	(c) After an employee’s rostered ceasing time on any one day; or
Overtime	(d) Outside the ordinary hours of work; or	(d) Outside the ordinary hours of work.
Overtime	(e) Hours worked by part-time employees in excess of the agreed hours in clause 12.2 or as varied under clause 12.3.	No equivalent clause
Overtime	No equivalent clause	27.3 A part-time employee shall be paid overtime for all work as follows: (a) In excess of: (i) 38 hours per week; or (ii) five days per week (or six days in one week if in the following week ordinary hours are worked on not more than four days); or (iii) eleven hours on any one day; or (b) Hours worked by a part-time employee outside the employee’s availability; or (c) Outside the ordinary hours of work.
Overtime	No equivalent clause	27.4 A part time employee shall be paid overtime if directed to work: (a) Before the employee's rostered commencing time on any one day; or (b) After the employee’s rostered ceasing time on any one day.
Overtime	No equivalent clause	27.5 Provided that no overtime penalty is payable for hours worked within the employee’s availability by the part-time employee in excess of the guaranteed minimum hours that are: (a) rostered; or (b) not rostered in advance but agreed to be worked consistent with clause 12.7.

 1   SDA submission 16 March 2018 at paras 4 – 20.

 2   SDA submission 16 March 2018 at paras 21 – 66.

 3   RAFFWU submission, 9 March 2018; RAFFWU submission, 26 July 2018.

 4   Mr Ian Flemington, Ms Annabel Sarah Anderson, Mr Nicola Agostino and Ms Elizabeth Montebello-Hunter.

 5   Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [38].

 6   O’Sullivan v Farrer (1989) 168 CLR 210 at p. 216 per Mason CJ, Brennan, Dawson and Gaudron JJ.

 7   Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35].

 8   (2017) 256 IR 1 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [41]–[44].

 9   [2018] FWCFB 3500 at [21]-[24].

 10   Edwards v Giudice (1999) 94 FCR 561 at [5]; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 at [81]-[84]; National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [56].

 11   Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [33].

 12   National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [105]-[106].

 13   See National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [109]-[110]; albeit the Court was considering a different statutory context, this observation is applicable to the Commission’s task in the Review.

 14   Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161.

 15   Ibid at [48].

 16   See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227.

 17   (2017) 256 IR 1.

 18   Ibid at [269].

 19   CFMEU v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123.

 20   Ibid at [46].

 21   (2017) 256 IR 1 at [1265].

 22   Fast Food Industry Award 2010 Clause 3.1

 23   Preston M, Pung A, Leung E, Casey C, Dunn A and Richter O (2012) ‘Analysing modern award coverage using the Australian and New Zealand Industrial Classification 2006: Phase 1 report’, Research Report 2/2012 Fair Work Australia.

 24   Source: ABS, Census of Population and Housing, 2016. Note: Part-time work in the Census is defined as employed persons who worked less than 35 hours in all jobs during the week prior to Census night. Information on employment type is collected for persons aged 15 years and over. Totals may not sum to the same amount due to non-response. For full-time/part-time status and hours worked, data on employees that were currently away from work (that reported working zero hours), were not presented.

 25   ABS, Census of Population and Housing, 2011 and 2016.

 26   Ibid.

 27   Source: HILDA survey Wave 16, 2016.

 28   (2017) 256 IR 1 at [1167]-[1183].

 29   Submission on award modernisation proceedings, Ai Group, 10 June 2016 in AM2014/305–.

 30   Affidavit of Annabel Sarah Anderson dated 23 February 2018 (Exhibit Ai Group 3); Supplementary Affidavit of Annabel Sarah Anderson dated 22 June 2018 (Exhibit Ai Group 4); Affidavit of Elizabeth Mary Montebello-Hunter dated 22 February 2018 (Exhibit Ai Group 7); Affidavit of Ian Flemington dated 23 February 2018 (Exhibit Ai Group 1); Affidavit of Nicola Agostino dated 23 February 2018 (Exhibit Ai Group 6); Affidavit of Glenn Norman Sullivan dated 22 February 2018 (Exhibit Ai Group 9); Affidavit of John Francis Chapman dated 21 February 2018 (Exhibit Ai Group 10); Affidavit of Alexander Martinoli dated 23 February 2018 (Exhibit Ai Group 11); Affidavit of Kate Nicole Swan dated 16 February 2018 (Exhibit Ai Group 12); Affidavit of Leasa Kate Francis Guilk dated 23 February 2018 (Exhibit Ai Group 13).

 31   Affidavit of Ian Flemington dated 23 February 2018 (Exhibit Ai Group 1).

 32   Affidavit of Annabel Sarah Anderson dated 23 February 2018 (Exhibit Ai Group 3); Supplementary Affidavit of Annabel Sarah Anderson dated 22 June 2018 (Exhibit Ai Group 4).

 33   Affidavit of Nicola Agostino dated 23 February 2018 (Exhibit Ai Group 6).

 34   Affidavit of Elizabeth Mary Montebello-Hunter dated 22 February 2018 (Exhibit Ai Group 7).

 35   Annexure EMH-1 to Affidavit of Elizabeth Mary Montebello-Hunter dated 22 February 2018 (Exhibit Ai Group 7).

 36   Affidavit of Glenn Sullivan dated 22 February 2018 (Exhibit Ai Group 9).

 37   Affidavit of John Chapman dated 21 February 2018 (Exhibit Ai Group 10).

 38   Affidavit of Alexander Martinoli dated 23 February 2018 (Exhibit Ai Group 11).

 39   Affidavit of Kate Swan dated 16 February 2018 (Exhibit Ai Group 12).

 40   Affidavit of Leasa Guilk dated 23 February 2018 (Exhibit Ai Group 13).

 41   Transcript, 1 December 2017 at [389].

 42   [2018] FWCFB 1251.

 43   [2018] FWCFB 2797.

 44   (2017) 256 IR 1.

 45   Ibid at [1161].

 46   Ibid at [1164].

 47   Ibid at [1344].

 48   Ibid at [1392].

 49   Anderson Supplementary Affidavit, Exhibit Ai Group 5 at [8].

 50   Anderson Affidavit, Exhibit Ai Group 3 at [58].

51 See 4 yearly review of modern awards – Penalty Rates – Hospitality and Retail sectors [2017] FWCFB 1001 at [166]-[168].

 52   Ai Group submission 23 February 2018 at [39].

 53   Anderson Affidavit Exhibit Ai Group 3 at [36], [42], [44]; see also Agostino Affidavit Exhibit Ai Group 6 at [21].

 54   Anderson Affidavit Exhibit Ai Group 3 at [36], [42]; Agostino Affidavit, Exhibit Ai Group 6 at [21].

55 [2012] FWCFB 4000 at [100]-[102].

 56   Ai Group submission, 23 February 2018 at [43].

 57   Ai Group submission, 18 July 2018 at [15].

 58   [2017] FWCFB 1001 at [184]-[203].

 59   Ai Group submission, 23 February 2018 at [2](b).

 60   [2017] FWCFB 1001 at [1238].

 61   RAFFWU Submission in Reply, 26 July 2018 at [6].

 62   Ai Group submission, 9 July 2018 at [24].

 63   See Montebello-Hunter Affidavit, Exhibit Ai Group 7 at [42], [44]; Sullivan Affidavit, Exhibit Ai Group 9 at [41]; Chapman Affidavit, Exhibit Ai Group 10 at [23]; Swan Affidavit, Exhibit Ai Group 12 at [16], [41]; Guilk Affidavit, Exhibit Ai Group 13 at [15], [25].

 64   See Montebello-Hunter Affidavit, Exhibit Ai Group 7 at [44].

 65   See Anderson Affidavit, Exhibit Ai Group 3 at [84]; Montebello-Hunter Affidavit, Exhibit Ai Group 7 at [42], [46], [47]; Flemington Affidavit, Exhibit Ai Group 1 at [51]; Agostino Affidavit, Exhibit Ai Group 6 at [27], [48]; Martinoli Affidavit, Exhibit Ai Group 11 at [6], [43], [44], [45], [49], [51]; Swan Affidavit, Exhibit Ai Group 12 at [18], [19], [20], [21]; Guilk Affidavit, Exhibit Ai Group 13 at [15], [39].

 66   See Anderson Affidavit, Exhibit Ai Group 3 at [85]; Montebello-Hunter Affidavit, Exhibit Ai Group 7 at [42]; Flemington Affidavit, Exhibit Ai Group 1 at [53]; Agostino Affidavit, Exhibit Ai Group at [49]; Sullivan Affidavit, Exhibit Ai Group 9 at [41]; Martinoli Affidavit, Exhibit Ai Group 11 at [46], [47]; Swan Affidavit, Exhibit Ai Group 12 at [16], [42], [45], [46]; Guilk Affidavit, Exhibit Ai Group 13 at [14], [26].

 67   See Martinoli Affidavit, Exhibit Ai Group 11 at [53]; Swan Affidavit, Exhibit Ai Group 12 at [16], [45].

 68   See Montebello-Hunter Affidavit, Exhibit Ai Group 7 at [48]; Martinoli Affidavit, Exhibit Ai Group 11 at [46], [48], [53]; Swan Affidavit, Exhibit Ai Group 12 at [45]; see also Guilk Affidavit, Exhibit Ai Group 13 at [50].

 69   [2017] FWCFB 3541.

 70   [2017] FWCFB 6181.

 71   [2017] FWCFB 3541 at [525].

 72   [2009] AIRCFB 826 at [144].

 73   Affidavit of Annabel Anderson, Exhibit Ai Group 3 at [15].

 74   Affidavit of Elizabeth Montebello-Hunter, Exhibit Ai Group 7 at [7], [8].

 75   Affidavit of Ian Flemington, Exhibit Ai Group 1 at [15].

 76   Ibid at [12] – [13].

 77   National Retail Association v Fair Work Commission [2014] FCAFC 118 at [18].

 78   The Australian Industry Group re Manufacturing and Associated Industries and Occupations Award 2012 [2012] FWA 2556.

 79   See Ai Group submission, 23 February 2018 at [89]-[95]; RAFFWU submission in reply, 26 July 2018 at [89].

 80   See Ai Group submission, 23 February 2018 at [88]; RAFWWU submission in reply, 26 July 2018 at [89].

 81   Clause 14.4 of the McDonald’s Agreement; see also clause 14.6 of the McDonald’s Agreement; Anderson Affidavit, Exhibit Ai Group 3 at [76], [82]; Agostino Affidavit, Exhibit Ai Group 6 at [40]; Martinoli Affidavit, Exhibit Ai Group 11 at [33], [36].

 82   Anderson Affidavit, Exhibit Ai Group 3 at [77], [83]; Agostino Affidavit, Exhibit Ai Group 6 at [40]; Martinoli Affidavit, Exhibit Ai Group 11 at [33], [36].

 83   Swan Affidavit, Exhibit Ai Group 12 at [30], [37]; Guilk Affidavit, Exhibit Ai Group 13 at [43], [48].

 84   Clause 9.6 of the Red Rooster Agreement; see also clauses 9.7 and 9.9 of the Red Rooster Agreement; see Flemington Affidavit, Exhibit Ai Group 1 at [44], [49].

 85   Clause 11 of the Chicken Treat Agreement; see also Flemington Affidavit, Exhibit Ai Group 1 at [44], [49].

 86   Flemington Affidavit, Exhibit Ai Group 1 at [45], [50].

 87   See Anderson Affidavit, Exhibit Ai Group 3 at [86]; Agostino Affidavit, Exhibit Ai Group 6 at [39]; Guilk Affidavit, Exhibit Ai Group 13 at [27].

 88   See Anderson Affidavit, Exhibit Ai Group 3 at [86]; Agostino Affidavit, Exhibit Ai Group 6 at [39]; Sullivan Affidavit, Exhibit Ai Group 9 at [41]; Chapman Affidavit, Exhibit Ai Group 10 at [23]; Guilk Affidavit, Exhibit Ai Group 13 at [27].

 89   See Montebello-Hunter Affidavit, Exhibit Ai Group 7 at [43]; Sullivan Affidavit, Exhibit Ai Group 9 at [41]; Guilk Affidavit, Exhibit Ai Group 13 at [28].

 90   See Martinoli Affidavit, Exhibit Ai Group 11 at [52].

 91   See Guilk Affidavit, Exhibit Ai Group 13 at [49].

 92   See Anderson Affidavit, Exhibit Ai Group 3 at [87]; Montebello-Hunter Affidavit, Exhibit Ai Group 7 at [43]; Flemington Affidavit, Exhibit Ai Group 1 at [55]; Sullivan Affidavit, Exhibit Ai Group 9 at [41]; Guilk Affidavit, Exhibit Ai Group 13 at [29]; see also Martinoli Affidavit, Exhibit Ai Group 11 at [50].

 93   Ai Group Supplementary Outline of Submission in Reply, 18 July 2018 at [2](b).

 94   Ibid.

 95   Ibid at [2](d).

 96   Anderson Affidavit, Exhibit Ai Group 3 at [25](d), [25](e), [75]; Montebello-Hunter Affidavit, Exhibit Ai Group 7 at [22]; Flemington Affidavit, Exhibit Ai Group 1 at [32]; Swan Affidavit, Exhibit Ai Group 12 at [50]; Guilk Affidavit, Exhibit Ai Group 13 at [37], [38]; see also Agostino Affidavit, Exhibit Ai Group 6 at [27]; Martinoli Affidavit, Exhibit Ai Group 11 at [21], [22].

 97   Flemington Affidavit, Exhibit Ai Group 1 at [42]; Sullivan Affidavit, Exhibit Ai Group 9 at [26]; Chapman Affidavit, Exhibit Ai Group 10 at [17]; Agostino Affidavit, Exhibit Ai Group 6 at [27]; Swan Affidavit, Exhibit Ai Group 12 at [19]; Guilk Affidavit, Exhibit Ai Group 13 at [37].

 98   Agostino Affidavit, Exhibit Ai Group 6 at [32]; Sullivan Affidavit, Exhibit Ai Group 9 at [26].

 99   Flemington Affidavit, Exhibit Ai Group 1 at [41].

 100   Agostino Affidavit, Exhibit Ai Group 6 at [27]; Flemington Affidavit, Exhibit Ai Group 1 at [41]; Sullivan Affidavit, Exhibit Ai Group 9 at [32].

 101   Flemington Affidavit, Exhibit Ai Group 1 at [41]; Sullivan Affidavit, Exhibit Ai Group 9 at [32].

 102   CFMEU v Anglo American Metallurgical Coal Pty Ltd [2017] FCAFC 123 at [23]; cited with approval in Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [45].

 103  Anderson Affidavit, Exhibit Ai Group 3 at [93]; Montebello-Hunter Affidavit, Exhibit Ai Group 7 at [52]; Agostino Affidavit, Exhibit Ai Group 6 at [46]; Chapman Affidavit, Exhibit Ai Group 10 at [22], [28], [29]; Martinoli Affidavit, Exhibit Ai Group 11 at [24], [25]; Swan Affidavit, Exhibit Ai Group 12 at [48], [50]; Guilk Affidavit, Exhibit Ai Group 13 at [53], [54].

 104   [2017] FWCFB 3541 at [645].

 105   [2017] FWCFB 1001 at para 1272.

 106  Preston M, Pung A, Leung E, Casey C, Dunn A and Richter O (2012), Analysing modern award coverage using the Australian and New Zealand Standard Industrial Classification 2006: Phase 1 report, Research Report 2/2012, Fair Work Australia, February; the ANZSIC class 4512–Takeaway food services is considered to be a ‘clean fit’ for the Fast Food Industry Award 2010.

 107   ABS, Census of Population and Housing, 2011 and 2016.

 108   ABS, Census of Population and Housing, 2011 and 2016.