| [2019] FWCFB 6673 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards – Fast Food Industry Award 2010
(AM2017/49)
Fast food industry | |
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 1 OCTOBER 2019 |
Fast Food Industry Award 2010 – Award stage – substantive issues
[1] In a decision 1 issued on 20 February 2019 (the February 2019 Decision) we addressed two substantive claims to vary the Fast Food Industry Award 2010 (the Fast Food Award) which sought to vary the award to insert:
(i) a facilitative provision to allow employers and a majority of employees concerned to agree to vary the end time of the evening penalty rate from 6.00am to 5.00am; and
(ii) a new part-time clause which permits ‘flexible part-time work’.
[2] We rejected the proposed facilitative provision ((i) above) on the basis that the proposed variation lacked merit and that if the award was varied in the manner proposed it would not achieve the modern awards objective. We also rejected Ai Group’s proposed ‘flexible part time clause’ but noted that the rejection of the claim ‘is not the end of the matter’ and expressed the provisional view that the current award places unwarranted restrictions on the capacity to vary part time hours, 2 noting that:
‘… 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.’ 3
[3] The existing award provisions which were the subject of the above observation were clause 12.3 and 12.4 of the Fast Food Award:
‘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.’
[4] We expressed the following provisional views in respect of these terms:
“• 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.’ 4
[5] As to the last point we noted 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.’ 5
[6] 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.’
[7] We noted that while 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.
[8] Following the February 2019 Decision two conferences were held before Deputy President Masson (on 21 March 2019 and 12 April 2019). The purpose of the conferences was to provide interested parties with an opportunity to comment on the provisional views set out above and to discuss the drafting of an appropriate variation to give effect to those provisional views in the event they were ultimately confirmed by the Full Bench. The positions taken by the parties at the conferences are set out in a Report issued by Deputy President Masson on 27 May 2019. Various draft clauses reflecting the above provisional views were discussed at the conferences before Deputy President Masson and Attachment C to the Report sets out the views of the SDA and Ai Group in respect of the draft clause provided for discussion. All parties accept that the Report accurately summarises their respective positions.
[9] In a decision 6 issued on 4 July 2019 (the July 2019 Decision) we gave further consideration to the provisional views expressed above. We noted that RAFFWU generally opposes the variation of clause 12 in accordance with our provisional views. We gave detailed consideration to RAFFWU’s submissions but concluded that clause 12 places unwarranted restrictions on the capacity to vary part-time hours and should be varied to give effect to our provisional views.
[10] As noted in the July 2019 Decision, the SDA and Ai Group support the variation of clause 12 to remove unwarranted restrictions on the capacity to vary part time hours. Both parties are in broad agreement that clause 12 be varied such that a variation to the agreed regular pattern of work:
• need not be recorded before the variation occurs (and the recording should be permitted to occur at a later time); and
• need not be provided to the employee (and that it is sufficient that a record be retained by the employer).
[11] Further, the SDA and Ai Group supported a variation of clause 12 to clarify that the recording of a variation to agreed regular hours may occur by electronic means. The issues in dispute concerned the translation of the agreed principles into practice. There were three contentious issues:
(i) the point at which a variation to the agreed regular pattern of work must be recorded;
(ii) interaction with meal breaks; and
(iii) whether overtime is payable in circumstances where there is no record of the agreed variation.
[12] The July 2019 Decision determined the issues in dispute and our conclusions in relation to each of the issues is set out below.
(i) Point at which the variation must be recorded
[13] We were not persuaded that it was appropriate to extend the flexibility as to the recording of the agreed variation to a particular rostered shift beyond the end of the affected shift and adopted the SDA’s proposed wording at clause 12.3(a):
‘(a) any agreement to vary the regular pattern of work for a particular rostered shift must be recorded at or by the end of the affected shift.’
(ii) Interaction with meal breaks
[14] Ai Group and the SDA both acknowledged that clause 27.1(d) requires amendment as a consequence of the proposed changes to clause 12, but disagreed on the form of such an amendment.
[15] During the course of oral argument it emerged that the issue in dispute was quite limited and that one way of resolving that dispute would be to include an express reference to clause 12.2, as follows:
‘27.1 Breaks during work periods
(a) The time of taking rest and meal breaks and the duration of meal breaks form part of the roster and are subject to any agreement reached under clause 12.2 regarding a part-time employees’ regular pattern of work. An agreed variation pursuant to sub-clauses 12.3 or 12.4 may include a variation to the time of taking rest and meal breaks.’
[16] This issue (although not the precise form of words to be used) was put to the parties during the course of oral argument and no party opposed the variation of clause 27.1(d) to include an express reference to clause 12.2 instead of the existing words: ‘subject to the roster provisions of this award.’ 7 However it was evident from the exchanges during the hearing that the parties sought an opportunity to consider the issue further, and any proposed draft. We agreed to such a course and provided an opportunity to comment on the proposed variation of clause 27.1 as part of the process for settling the variation determination arising from these proceedings. We deal with the parties’ subsequent submissions shortly.
(iii) Overtime payable
[17] The SDA proposed variations to clauses 12.5 and 26.2 the effect of which is that in the absence of any record of an agreement to vary a part-time employees’ hours in relation to a particular rostered shift, any time worked in excess of the hours agreed as part of the employees agreed regular patter of work are paid at overtime rates. It was submitted that the variations proposed ‘provides a protection for employees who have not agreed to work the additional hours.’ 8 We accepted that the variations proposed by the SDA were necessary to achieve the modern awards objective.
[18] In the July 2019 Decision we concluded that if the award was varied in the manner proposed in the draft determination set out at Attachment A to that decision it would provide ‘a fair and relevant minimum safety net of terms and conditions’ and that the variations were necessary to achieve the modern awards objective. At [79] of the July 2019 Decision we set out the next steps in relation to the conclusion of this issue:
‘The variations we propose to make are set out in the draft variation determination attached to this decision (see Attachment A). We propose to provide interested parties with a final opportunity to comment on the draft variation determination and, in particular, the variations referred to at [55] and [56] above. Any comments are to be made, in writing to [email protected] by no later than 18 July 2019. Any outstanding issues will be determined based on the written material filed unless a request for an oral hearing is received by 18 July 2019.’
[19] Submissions in response to the draft variation determination were filed by:
• Ai Group
• RAFFWU
• SDA
[20] No party requested an oral hearing and hence any outstanding issues will be determined on the papers.
[21] It is convenient to deal first with the submissions of RAFFWU and the SDA.
[22] RAFFWU does not advance any further submission in relation to the draft variation determination but does comment on the NRA submission, to which we shall turn shortly.
[23] The SDA does not oppose the draft determination and makes the following suggestion to amend the drafting of clause 26.2(e):
‘(e) Hours worked by part-time employees in excess of:
(i) in excess of the agreed hours in clause 12.2; or
(ii) in excess of the agreed hours as varied under clause 12.3 or 12.4.’
[24] We agree with the SDA’s suggestion and will amend the variation determination accordingly.
[25] We now turn to the NRA and Ai Group submissions.
[26] The NRA submission of 15 July 2019 expresses concern about ‘the utility and effectiveness of some elements of the proposed variation’. The NRA submission raises two substantive matters and some ‘other consequential amendments’. We note at the outset that none of the amendments by the NRA received any support from any other party. Indeed Ai Group opposed all of the NRA’s proposed amendments.
(i) The concept of a ‘pattern of work’
[27] The proposed variations to clause 12 of the Award include two variations to sub-clauses 12.3 and 12.4 to allow for the variation of the “pattern of work” of a part-time employee.
[28] The proposed new sub-clause 12.3 relevantly reads as follows:
12.3 The employer and employee may agree to vary an agreement made under clause 12.2 in relation to a particular rostered shift as follows:
(a) any agreement to vary the regular pattern of work for a particular rostered shift must be recorded at or by the end of the affected shift …(emphasis added)
[29] The proposed new sub-clause 12.4 relevantly reads:
12.4 The employer and employee may agree to vary an agreement made under clause 12.2, in respect of the regular pattern of work, on an ongoing basis or for a specified period of time, as follows …
[30] The expression ‘regular pattern of work’ is derived from clause 12.2 which provides that:
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 …
[31] The NRA notes that the expression ‘regular pattern of work’ is not a defined term in the legislative sense and that its meaning is instead inferred from the surrounding text. In this regard sub-clause 12.2 specifies the items which must be included in the agreement entered into under that sub-clause which includes the regular pattern of work as follows:
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:
(a) the number of hours worked each day;
(b) which days of the week the employee will work;
(c) the actual starting and finishing times each day;
(d) that any variation will be in writing (including by any electronic means of communication (for example, by text message);
(e) that the daily engagement is a minimum of 3 consecutive hours; and
(f) the times of taking and the duration of meal breaks.
[32] The NRA submits that it is not clear, on the face of sub-clause 12.2, whether the expression ‘regular pattern of work’ means paragraphs (a), (b) and (c) of that sub-clause, paragraphs (b) and (c) only, or all six paragraphs listed under sub-clause 12.2. Further, it submits that in the absence of a concrete definition, the expression ‘regular pattern of work’ is susceptible to taking its ordinary, natural meaning, being the days and times within which the part-time employee performs work and that this means it is possible that, the expression ‘regular patter of work’ in the proposed new sub-clauses 12.3 and 12.4 refers only to the items specified at paragraphs (b) and (c) of sub-clause 12.2.
[33] The NRA contends that such an interpretation would still allow for flexibility in that the roster of a part-time employee may be varied, however may generate an obstacle to a part-time employee agreeing to increase or decrease the total number of hours that they are to work as contemplated by paragraph (a) of sub-clause 12.2.
[34] The NRA acknowledges that the Fast Food Award is ‘highly inflexible in its treatment of part-time employees’, and it is appropriate that structural impediments which prohibit employers from effectively providing additional hours to part-time employees ought to be minimized. To address this issue, the NRA proposes that clauses 12.3 and 12.4 be amended to include the words (including the total number of hours worked) after each incidence of the expression ‘the regular pattern of work’.
[35] RAFFWU opposes the amendment proposed by the NRA:
‘We note the submission of NRA of 15 July 2019. The NRA had every opportunity to participate in the processes of the Fair Work Commission. It chose not to. In relation to the attempt to define the “regular pattern of work” we submit the clause is clear on its terms including by specifying the 6 dot points which all contribute to the meaning of “regular pattern of work”. The work sought to be done by the NRA is done by the first three and sixth dot points.
Attempting to define the term, a term used in other Awards, is a much larger matter which ought be canvassed in the ordinary way rather than by such a late application disguised as commentary on the draft determination.’
[36] In reply, Ai Group submits that the meaning of the expression ‘regular pattern of work’ in clause 12.2, as currently set out in item 1 of the Draft Determination, is clear and that it is not necessary for proposed clauses 12.3 and 12.4 to be amended as proposed by the NRA.
[37] We agree with Ai Group.
[38] Proposed clause 12.2 sets out the minimum requirements for a written agreement between an employer and a part-time employee in relation to a regular pattern of work. It provides that the employer and the part-time employee will agree, in writing, on a regular pattern of work, specifying at least…’; the minimum requirements are then articulated in sub-clauses (a) to (f) of proposed clause 12.2.
[39] Having regard to the phrase ‘regular pattern of work’ and its context within clause 12.2, the meaning is clear in that it is any or all of the items in clause 12.2(a) to (f); with the exception of (d) which is a machinery term with respect to how a variation of that pattern of work is to be recorded. It follows that the regular pattern of work encompasses the matters contained in sub-clauses (a) to (f) of proposed clause 12.2 (excluding sub-clause 12.2(d)).
(ii) Redundant specification of electronic forms of writing
[40] Proposed new sub-clauses 12.3 and 12.4 include specific reference to electronic communication as a valid means of recording an agreement made in accordance with those sub-clauses. A similar variation appears at sub-clause 12.2(d).
[41] Specifically, sub-clauses 12.2(d), 12.3(b) and 12.4(b) provide as follows:
12.2
…
(d) that any variation will be in writing, including by electronic means of communication (for example, by text message); (our emphasis)
12.3
…
(b) the employer must keep a copy of the agreed variation, in writing, including by any electronic means of communication and provide a copy to the employee, if requested to do so. (Our emphasis)
12.4
…
(b) the agreed variation must be recorded in writing, including by any electronic means of communication. (Our emphasis)
[42] In the NRA’s view, the expression “any electronic means of communication” is redundant having regard for applicable legislation and what is intended to be achieved by the inclusion of this expression in the proposed new sub-clauses.
[43] The NRA submits that modern awards are industrial instruments made under power conferred on the Fair Work Commission and its predecessors by legislation, and as such fall within the ambit of section 46 of the Acts Interpretation Act 1901 (Cth) such that the Act applies to the interpretation of modern awards. Further, s.2B of the Acts Interpretation Act 1901 (Cth) defines writing, as it appears in any Act or other instrument which that Act applies, as follows:
writing includes any mode of representing or reproducing words, figures, drawings or symbols in visible form.
[44] On this basis the NRA contends that the expression ‘in writing’ as it appears in clause 12 of the Fast Food Award currently includes writing in an electronic format and accordingly ‘the utility of including an express reference to electronic communication is largely redundant’.
[45] The NRA also submits that expressly validating electronic communications in one modern award, without similar express validation in other modern awards, may result in a conclusion among business operators that in the absence of such an express validation in their own applicable award, electronic communication is not an effective means of managing their business.
[46] Considering the specific example of a “text message” in the proposed variation to sub-clause 12.2(d), the NRA submits that it appears that the intention behind the proposed variation is not to validate electronic forms of communication per se, but to make it clear that there is no particular formality required in order to make or vary an agreement under the various sub-clauses of clause 12.
[47] The NRA submits that if the intention of the Full Bench is not to validate electronic communication in and of itself, but rather to validate the informality often inherent in such communications, then any reference to electronic communication as a form of writing is not necessary and should be deleted.
[48] The NRA submits that the amendments proposed above give better effect to the outcomes it believes were intended by the Full Bench in the proposed draft determination.
[49] Ai Group opposes the variations proposed by the NRA, noting that the NRA submissions appear to proceed on a basis that the Full Bench had proposed this variation to ‘make it clear that there is no particular formality required in order to make or vary an agreement’ and to ‘validate the informality which comes with such communications’. Ai Group notes that the NRA advances no basis upon which they have made this presumption and submits that in any event its presumption is misplaced.
[50] Ai Group submits that the Full Bench has in including reference to ‘electronic means of communication (for example, by text message)’ appropriately had regard to:
(a) the conclusions of the Part time/Casuals Decision 9 that this form of communication reflected s.134(1)(d) – ‘the need to promote flexible modern work practices’;
(b) the evidentiary findings that Ai Group sought for the Full Bench to make, including:
(i) The regularity of employees changing their own availability 10; and
(ii) The requirements of the current clause posing an administrative burden 11 .
[51] Ai group further notes that during earlier proceedings in this matter, Ai Group and the SDA supported a variation of clause 12 to clarify that the recording of a variation to agreed regular hours may occur by electronic means and that the Draft Determination reflects this agreement.
[52] Ai Group submits that the matters the NRA have raised have already been dealt with adequately by the Commission and in addition to there being no cogent reasons advanced by the NRA to depart from the July Decision and that the assumptions which underpin their submissions are misplaced.
[53] We agree with Ai Group. We would also observe that the inclusion of the words ‘including by any electronic means of communication’ in proposed subclauses 12.2(d), 12.3(b) and 12.4(b), assist in making the award simple and easy to understand, consistent with s 134(1)(g).
[54] Further, as noted above, the NRA contends that including such an expression without similar express validation of electronic communication in other modern awards, ‘may result in a conclusion among business operators that in the absence of such an express validation in their own applicable award, electronic communication is not an effective means of managing their business’. 12 Two points may be made in relation to the NRA’s contention.
[55] The first is that this is not the first occasion that an expression such as this has been included in a modern award. For example both the TOIL model term and the ‘Access to the award and NES’ standard term, which appear in most modern awards, include a reference to providing information by electronic means. The TOIL model term includes the following note:
‘Note: An example of the type of TOIL agreement required by this clause is set out at Schedule [x]. There is no requirement to use the form of TOIL agreement set out at Schedule [x]. A TOIL agreement can also be made by an exchange of emails between the employee and employer, or by other electronic means.’
[56] The ‘Access to the award and NES’ standard term provides as follows:
‘The employer must ensure that copies of this award and the NES are available to all employees to whom they apply either on a noticeboard which is conveniently located at or near the workplace or through electronic means, whichever makes them more accessible. (Emphasis added)
[57] The second point is that potential problem identified by the NRA is entirely speculative. There is no evidence of any business operator reaching the conclusion identified by the NRA based on existing award terms which make express reference to electronic communication.
(iii) Other consequential amendments
[58] Two ‘consequential amendments’ are proposed.
[59] First, the NRA submits that the proposed form of clause 27.1(d) be revised by including an express reference to clause 12.2(d). The marked-up version of the proposed amendment is set out below:
(d) The time of taking rest and meal breaks and the duration of meal breaks for part of the roster and are subject to any agreement reached under clause 12.2 regarding a part-time employee’s regular pattern of work. An agreed variation pursuant to sub-clauses 12.2(d), 12.3 or 12.4 may include a variation to the time of taking rest and meal breaks.
[60] Second, the NRA notes that the paragraph structure of the proposed new clause 12.3 is inconsistent with drafting practices, in that paragraphs (a) and (b) to that clause are related, whilst paragraph (c) of that clause is independent of the preceding two paragraphs. The NRA proposes that clause 12.3 be streamlined by removing clauses 12.3(b) and (c) and amending clause 12.5 appropriately, and moving the contents of clause 12.3(a) to the body of clause 12.3.
[61] The NRA also believes that the current wording of clause 12.4 utilises excessive redundancy of language, and proposes what it believes to be a more streamlined form of words.
[62] The NRA also proposes various grammatical amendments to the draft determination. This includes removing reference to the expression “additional hours” at the proposed new clause 26.2(f), on the basis that this expression has a technical meaning under section 62 of the Fair Work Act 2009 and, in the context of the remainder of that clause, is redundant.
[63] The changes proposed by the NRA, in mark-up, are set out below:
12.3 The employer and employee may agree to vary an agreement made under clause 12.2 in relation to a particular shift as follows: provided that any agreement to vary the regular pattern of work (including the total number of hours) for a rostered shift must be recorded in writing at or by the end of the affected shift.; and
(b) the employer must keep a copy of the agreed variation, in writing, including by any electronic means of communication and provide a copy to the employee, if requested to do so.
(c) In the event that no record of an agreed variation to a particular rostered shift is retained the employee is to be paid at overtime rates for any hours worked in excess of their regular pattern of work.
12.4 The employer and employee may agree to vary an agreement made under clause 12.2, in respect of the regular pattern of work (including the total number of hours), on an ongoing basis or for a specified period of time, provided that any such agreement is recorded in writing before the variation occurs. as follows:
(a) any agreement to vary the regular pattern of work on an ongoing basis or for a specified period of time must be recorded before the variation occurs; and
(b) the agreed variation must be recorded in writing, including by any electronic means of communication.
12.5 The employer must keep a copy of any agreement made under clause 12.2 and any agreed variation made under clause 12.2(d), 12.3 or 12.4 and:
(a) in the case of a variation agreed under clause 12.3 – provide a copy of the agreement to the employee if requested; and
(b) in all other cases – provide a copy of the agreement to the employee; and
(c) if a copy of a variation made under clause 12.2(d), 12.3 or 12.4 is not kept by the employer, the employee is to be paid overtime rates worked in excess of their regular pattern of work.
26.2 A full-time or part-time employee shall be paid overtime for all work as follows:
(a) Iin 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) Bbefore an employee’s rostered commencing time on any one day; or
(c) Aafter an employee’s rostered ceasing time on any one day; or
(d) Ooutside the ordinary hours of work; or
(e) Hhours worked by part-time employees in excess of:
(i) the hours agreed in accordance with clause 12.2; or
(ii) in excess of the agreed hours as varied under clause 12.2(d), 12.3 or 12.4; or
(f) any additional hours worked by a part-time employee in excess of their regular pattern of work as agreed in accordance with clause 12.2 in circumstances where there is no written record of an agreed variation in relation to a particular rostered shift.
[64] Ai Group opposes all of the NRA’s proposed variations, noting that the drafting of clause 12 has been the subject of extensive discussion and consideration by the parties and the Commission. Ai Group submits that the NRA submissions do not establish any reasonably arguable basis on which the Commission could be satisfied that the proposed variations are necessary.
[65] Ai Group contends that the NRA proposal does not distinguish between an employer’s obligations in relation to records of agreements to vary the regular pattern of work for a particular shift, and obligations in relation to records of agreements made in respect of the regular pattern of work on an ongoing basis or for a specified period of time. Ai Group submits that the NRA’s proposal would require an employer to pay overtime rates for time worked by an employee in excess of their regular pattern of work where no record of an agreed variation is retained, in both cases.
[66] Ai Group submits that we should reject the inclusion of clause 12.5(c) as proposed by the NRA for the following reasons:
(i) the clause is not necessary to meet the modern awards objective set out in section 134 of the FW Act. The NRA has provided no submissions as to why the conclusions reached in the July 2019 Decision that the Draft Determination appropriately promoted ‘flexible modern work practices 13‘, reduced ‘employment costs and regulatory burden14‘ and provided a ‘fair and relevant minimum safety net of terms and conditions15‘ are ill-founded; and
(ii) throughout these proceedings extensive consideration has been given by the parties and the Commission to the manner in which flexible part-time arrangements should be expressed. At no stage in these proceedings has it been submitted by any of the parties or proposed by the Commission that overtime rates should apply in the manner proposed by the NRA.
[67] We are not persuaded that the first proposed change (the inclusion of the reference to sub-clause 12.2(d) in clause 27.1(d)) is appropriate. The cross-references in clause 27.1(d) refer to those part of clause 12 which deal with the variation of an agreement made under clause 12.2. Sub-clause 12.2(d) is not of that character.
[68] We accept, in part, the second suite of changes proposed by the NRA. We agree with the NRA’s submission that paragraphs (a) and (b) of proposed clause 12.3 are related; and paragraph (c) is not. We propose to amend the draft determination, as follows:
12.3 The employer and employee may agree to vary an agreement made under clause 12.2 in relation to a particular rostered shift as follows provided that:
(a) any agreement to vary the regular pattern of work for a particular rostered shift must be recorded at or by the end of the affected shift; and
(b) the employer must keep a copy of the agreed variation, in writing, including by any electronic means of communication and provide a copy to the employee, if requested to do so.
12.4 (c) In the event that no record of an agreed variation to a particular rostered shift under clause 12.3 is retained kept by the employer the employee is to be paid at overtime rates for any hours worked in excess of their regular pattern of work.
[69] We also agree with the NRA’s proposed variation of what was clause 12.4 in the draft determination, subject to the addition of the expression ‘including by any electronic means of communication’ and the deletion of (including the total number of hours), as set out below:
12.4 The employer and employee may agree to vary an agreement made under clause 12.2, in respect of the regular pattern of work, on an ongoing basis or for a specified period of time, provided that any such agreement is recorded in writing (including by any electronic means of communication) before the variation occurs. as follows:
(a) any agreement to vary the regular pattern of work on an ongoing basis or for a specified period of time must be recorded before the variation occurs; and
(b) the agreed variation must be recorded in writing, including by any electronic means of communication.
[70] We also agree with the NRA’s proposed amendments to clause 26.2 of the draft determination (save for the proposed cross-reference to clause 12.2(d) in clause 26.2(e)).
[71] We now turn to Ai Group’s submission. Ai Group advances three proposed amendments to the draft determination.
(i) Clause 12.3 – Multiple agreements in respect of a single shift
[72] Ai Group contends that it is not clear under proposed clause 12.3 whether an employer and an employee may agree to multiple changes to a single shift (and if this were to be done, whether all changes could be recorded in a single record). It is submitted that it ‘is conceivable that multiple agreements may be struck in respect of a single shift – for example, an employee may be asked and agree to start a shift early, and then throughout the course of the shift be asked and agree to remain at work beyond the end of the original shift finish time due to requirements unforeseen at the commencement of the shift’. 16 To accommodate such a scenario, Ai Group submits that clause 12.3 be amended and further, for the collection of agreements arrived at to only need to be recorded in a single written record (at or by the end of the shift).
[73] Ai Group’s submission is unpersuasive and no evidentiary basis is provided for the contention that ‘multiple agreements may be struck in respect of a single shift’. We do not propose to make the amendment sought.
(ii) Clause 26.2 – Overtime
[74] Ai Group has also identified a concern with respect to proposed Clause 26.2 of the draft determination, namely that the terms of sub-clauses 26.2(b), (c) and (d) and their application to part-time employees ‘may create uncertainty in the context of the ability for part-time employees to ‘flex up’ without the payment of overtime as contemplated in 26.2(e)’. It is submitted that such a result would be inconsistent with s.134(1)(g) and that 26.2(b), (c) and (d) should be limited to full-time employees only to maintain the ability for part-time employees to ‘flex up’ without paying overtime, as contemplated in 26.2(e).
[75] In addition to this potential uncertainty, Ai Group also contends that the sub-clauses are unnecessary in respect to part-time employees because the effect of sub-clause 26.2(b), (c) and (d) is already captured by sub-clause 26.2(e)(i) when it is read in conjunction with clause 12.2. In particular, proposed clauses 12.3 and 12.4 in the draft determination enable an employer and an employee to vary an agreement made under clause 12.2 and such variation may extend to the number of hours to be worked on that particular day (12.2(a)), the day on which the shift will be worked (12.2(b)), the start time of the shift (12.2(c)) and the finish time of the shift (12.2(c)).
[76] The effect of proposed sub-clause 26.2(e)(i) is (by virtue of the cross-reference to sub-clause 12.2) to replicate the effect of sub-clauses 26.2(b), (c) and (d). Therefore, it is unnecessary (and potentially, a source of confusion) to apply both clauses 26.2(b) – (d) and 26.2(e)(i) to part-time employees.
[77] Ai Group further suggest that it would be useful for sub-clause 26.2(e)(i) to be amended to clarify that overtime is only payable for hours worked by part-time employees in excess of the agreed hours in clause 12.2, in the absence of a variation under clause 12.3 or 12.4.
[78] The amendments proposed by Ai Group are set out in mark-up below:
26.2 A full-time or part-time employee Overtime shall be paid overtime for all work as follows:
(a) For full time and part time employees, work Iin 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) For full time employees only, work:
(i) Before an employee’s rostered commencing time on any one day; or
(c) (ii) After an employee’s rostered ceasing time on any one day; or
(d) (iii) Outside the ordinary hours of work; or
(e) (c) For part time employees only, additional Hhours worked by part-time employees in excess of:
(i) where there is no variation under clause 12.3 or 12.4, in excess of the agreed hours in clause 12.2; or
(ii) in excess of the agreed hours as varied under clause 12.3 or 12.4; or
(f) Any additional hours worked by a part-time employee (iii) in excess of their regular pattern of work in circumstances where there is no written record of an agreed variation to a particular rostered shift.
[79] Contrary to Ai Group’s assertion we are not persuaded that the terms of proposed sub clauses 26.2(b), (c) and (d) ‘may create uncertainty’ in respect of the ability of part time employees to ‘flex up’ (i.e. vary their regular pattern of work by increasing their hours of work) without giving rise to an entitlement to overtime payments.
[80] It is clear from clauses 12.3 and 12.5 that an employer and part time employee may agree to vary the employees agreed regular pattern of work either in relation to a particular rostered shift, or on an ongoing basis or for a specified period of time. Clause 26.2(e) makes it clear that it is only hours worked in excess of a part time employees’ agreed hours ‘as varied under clause 12.3 or 12.5, which attracts overtime payments.’
[81] The amendments we intend to make to the draft variation determination are set out, in mark-up, at Attachment A.
[82] For the reasons given in the July 2019 Decision 17 we have concluded that if the Fast Food Award was varied in accordance with the draft variation determination set out at Attachment A, it would provide ‘a fair and relevant minimum safety net of terms and conditions’ and that the variation is necessary to achieve the modern awards objective. In reaching that conclusion, we have taken into account the s.134 considerations.18
PRESIDENT
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ATTACHMENT A
DRAFT DETERMINATION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards
(AM2017/49)
FAST FOOD INDUSTRY AWARD 2010
[MA000003]
Fast food industry | |
JUSTICE ROSS, PRESIDENT |
MELBOURNE, *** 2019 |
4 yearly review of modern awards – Fast Food Award 2010 (MA000003).
A. Further to the Full Bench decisions issued on 4 July 2019 19 and 1 October 201920the Fast Food Industry Award 201021 is varied as follows:
1. By deleting clause 12 and inserting:
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:
(a) the number of hours worked each day;
(b) which days of the week the employee will work;
(c) the actual starting and finishing times of each day;
(d) that any variation will be in writing, including by any electronic means of communication (for example, by text message);
(e) that the daily engagement is a minimum of 3 consecutive hours; and
(f) the times of taking and the duration of meal breaks.
12.3 The employer and employee may agree to vary an agreement made under clause 12.2 in relation to a particular rostered shift as follows provided that:
(a) any agreement to vary the regular pattern of work for a particular rostered shift must be recorded at or by the end of the affected shift; and
(b) the employer must keep a copy of the agreed variation, in writing, including by any electronic means of communication and provide a copy to the employee, if requested to do so.
(c) In the event that no record of an agreed variation to a particular rostered shift is retained the employee is to be paid at overtime rates for any hours worked in excess of their regular pattern of work.
12.4 In the event that no record of an agreed variation to a particular rostered shift under clause 12.3 is retained kept by the employer the employee is to be paid at overtime rates for any hours worked in excess of their regular pattern of work.
12.5 The employer and employee may agree to vary an agreement made under clause 12.2, in respect of the regular pattern of work on an ongoing basis or for a specified period of time, as follows provided that any such agreement is recorded in writing (including by any electronic means of communication) before the variation occurs.
(a) any agreement to vary the regular pattern of work on an ongoing basis or for a specified period of time must be recorded before the variation occurs; and
(b) the agreed variation must be recorded in writing, including by any electronic means of communication.
12.6 The employer must keep a copy of any agreement made under clause 12.2 and any agreed variation made under clause 12.4 and provide a copy to the employee.
12.7 An employer is required to roster a part-time employee for a minimum of 3 consecutive hours on any shift.
12.8 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.
12.9 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 or 12.4 will be overtime and paid for at the rates prescribed in clause 26—Overtime.
2. By deleting clause 26.2 and inserting:
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
(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; or
(e) hours worked by part-time employees in excess of:
(i) the agreed hours in clause 12.2; or
(ii) in excess of the agreed hours as varied under clause 12.3, 12.4 or 12.5; or
(f) any additional hours worked by a part-time employee in excess of their regular pattern of work in circumstances where there is no written record of an agreed variation to a particular rostered shift.
3. By deleting clause 27.1(d) and inserting:
‘(d) The time of taking rest and meal breaks and the duration of meal breaks form part of the roster and are subject to any agreement reached under clause 12.2 regarding a part-time employees’ regular pattern of work. An agreed variation pursuant to sub-clauses 12.3 or 12.4 may include a variation to the time of taking rest and meal breaks.’
B. This determination comes into operation on [insert date]. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect until the start of the first full pay period that starts on or after [insert date].
PRESIDENT
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2 Ibid at [151]
3 Ibid at [152]
4 Ibid at [154]
5 [2017] FWCFB 3541 at [645].
7 Ibid at [140]-[146]
8 SDA submissions 20 June 2019 at [14]
9 The February Decision at [155], citing [2017] FWCFB 3541
10 Findings sought by Ai Group 9 July 2018 at [24]
11 Ibid at [25]
12 NRA submission 15 July 2019 at paragraph 4.9
13 [2019] FWCFB 4679 at [73]
14 Ibid
15 Ibid at [78]
16 Ai Group submission 18 July 2019 at paragraph 8
17 [2019] FWCFB 4679 at paragraphs [67] – [77]
18 Ibid