| [2019] FWCFB 6894 |
| FAIR WORK COMMISSION |
STATEMENT |
Fair Work Act 2009
s.156—4 yearly review of modern awards
4 yearly review of modern awards
(AM2019/17)
JUSTICE ROSS, PRESIDENT |
MELBOURNE, 10 OCTOBER 2019 |
4 yearly review of modern awards – finalisation of exposure drafts – tranche 1.
[1] A decision issued on 2 September 2019 1 (the September 2019 Decision) outlined the process for finalising the exposure drafts produced in the 4 yearly review of modern awards (the Review) and the consequent variation of each modern award. For the purpose of this process awards have been divided into 3 tranches. The awards in each tranche were set out at Attachment B to the September 2019 Decision.
[2] This Statement deals with the 37 awards 2 in Tranche 1, that is:
• Aluminium Industry Award 2010
• Ambulance and Patient Transport Industry Award 2010
• Animal Care and Veterinary Services Award 2010
• Aquaculture Industry Award 2010
• Banking, Finance and Insurance Award 2010
• Book Industry Award 2010
• Car Parking Award 2010
• Cement, Lime and Quarrying Award 2010
• Cemetery Industry Award 2010
• Coal Export Terminals Award 2010
• Corrections and Detention (Private Sector) Award 2010
• Cotton Ginning Award 2010
• Electrical Power Industry Award 2010
• Fire Fighting Industry Award 2010
• Funeral Industry Award 2010
• Gardening and Landscaping Services Award 2010
• Hydrocarbons Industry (Upstream) Award 2010
• Legal Services Award 2010
• Market and Social Research Award 2010
• Medical Practitioners Award 2010
• Mining Industry Award 2010
• Nursery Award 2010
• Oil Refining and Manufacturing Award 2010
• Pharmacy Industry Award 2010
• Port Authorities Award 2010
• Premixed Concrete Award 2010
• Racing Industry Ground Maintenance Award 2010
• Real Estate Industry Award 2010
• Salt Industry Award 2010
• Seafood Processing Award 2010
• Silviculture Award 2010
• Sporting Organisations Award 2010
• State Government Agencies Award 2010
• Surveying Award 2010
• Travelling Shows Award 2010
• Water Industry Award 2010
• Wool Storage, Sampling and Testing Award 2010
[3] On 2 September 2019 Exposure Drafts were published for each of these awards with amendments made in tracked change to show the changes made since the Exposure Draft was last published. Draft variation determinations in respect of each award were also published.
[4] In the September 2019 decision we expressed the provisional view that the variation of the modern awards in Tranche 1 in accordance with the draft variation determinations was, in respect of each of these awards, necessary to achieve the modern awards objective. Interested parties were invited to comment on the provisional view in accordance with the timetable 3 below:
Date |
Event |
2 September 2019 |
Publish final exposure drafts and draft variation determinations |
27 September 2019 |
Parties to file submissions on final exposure drafts and draft variation determinations |
8 October 2019 |
Parties to file submissions in reply |
11 October 2019 |
Full Bench Hearing (if required) |
[5] Submissions have been filed by:
• Australian Manufacturing Workers’ Union (AMWU) on 30 September 2019 and 8 October 2019; 9 October 2019
• Australian Business Industrial and NSW Business Chamber (ABI) on 27 September 2019;
• Australian Industry Group (Ai Group) on 20 September 2019 and 8 October 2019;
• Professionals Australia on 20 September 2019;
• United Voice on 20 September 2019; and
• Australian Workers’ Union (AWU) on 9 October 2019.
[6] Issues raised in respect of the Tranche 1 will be the subject of a hearing at 10am on Friday 11 October 2019. This Statement summarises the submissions made and expresses a number of provisional views in respect of some of the points advanced. The purpose of the Statement is to focus the 11 October 2019 hearing on the contentious issues. We deal first with the uncontested awards.
2. The Uncontested Awards
[7] As at 10 October 2019 no submissions have been made contesting our provisional view (see [4] above) in respect of the following awards:
• Book Industry Award 2010
• Car Parking Award 2010
• Coal Export Terminals Award 2010
• Corrections and Detentions (Private Sector) Award 2010
• Fire Fighting Industry Award 2010
• Gardening and Landscaping Services Award 2010
• Legal Services Award 2010
• Market and Social Research Award 2010
• Medical Practitioners Award 2010
• Port Authorities Award 2010
• Racing Industry Ground Maintenance Award 2010
• Sporting Organisations Award 2010
• State Government Agencies Award 2010
• Travelling Shows Award 2010
[8] If no submissions are made in respect of these awards at the 11 October 2019 hearing we will confirm our provisional views and issue the variation determinations in respect of each of these awards in the terms published on 2 September 2019, subject to our determination of the general issues raised in Section 3 below.
3. General Issues
[9] Four general issues are raised in the submissions.
3.1 Operative Date
[10] Ai Group notes that the draft variation determinations in respect of the Tranche 1 awards do not propose a date upon which the determinations would come into operation. Ai Group submits that the variations should commence operation ‘not less than three months after the final determination is issued.’
[11] The AMWU is not opposed to a ‘three month lead in time’ for the operation of the varied awards.
[12] We accept that some lead in time would be appropriate and it is our provisional view that the variation determinations would be published in October 2019 and come into operation on 3 February 2020.
[13] However, a delayed operation may give rise to potential problems. If the determinations are published shortly, but operative on 3 February 2020, what action is to be taken if another Full Bench, for example dealing with a substantive claim to vary the award, makes a variation determination prior to 3 February 2020?
[14] One option may be for final draft variation determinations to be published before the end of October 2019. Final determinations would then be made in early December 2019, but operate from 3 February 2020.
[15] The parties are asked to address the issue raised in [13] above at the hearing on 11 October 2019.
3.2 Overtime for casuals
[16] ABI notes that in the September 2019 Decision we acknowledge that various common issue matters are yet to be finally determined, including the ‘Overtime for Casuals’ matter.
[17] A number of the Tranche 1 Exposure Drafts published on 2 September 2019 contain summary tables setting out the overtime rates for casual employees (in dollar terms). The calculation of some of these rates is currently in dispute as part of the ‘Overtime for Casuals’ matter. The tables in the relevant Exposure Drafts contain the following disclaimer:
‘A Full Bench has been constituted in AM2017/51 to deal with the issue of overtime for casuals. The rates in the tables below dealing with overtime for casuals will not become operative until a decision is made in that matter and only to the extent that they are consistent with the decision.’
[18] ABI agrees that the summary tables should not be given effect until the relevant decision is handed down, but submits that it is not clear whether the Commission intends to:
(i) publish the updated awards without these tables, inserting them at a later time after the relevant Full Bench hands down its decision; or
(ii) publish the updated awards with the tables as currently set out in the exposure drafts, along with a disclaimer that the rates are not yet operational and are subject to a further decision of the Commission.
[19] ABI submits that the first option is the most appropriate and, further, if the relevant Full Bench has not yet handed down its decision, a similar process should be undertaken in relation to updated exposure drafts in Tranches 2 and 3.
[20] In its reply submissions the AMWU advises that it is not opposed to the course of action proposed by ABI.
[21] It is our provisional view that the first option set out above is the appropriate course, however as mentioned at [13] above, issues may arise depending on the timing of other Full Bench decisions.
[22] There is one further matter. While the AMWU is not opposed to the course proposed by ABI, it goes on to advance the following submission:
‘10. However, the AMWU notes that the reverse is also true, in that there are some exposure drafts in tranche 1 where the there is no table of rates, or if there is, there are no casual overtime rates (as distinct from other rates for casuals, such as weekend and public holiday penalties)
11. The AMWU submits that where this is the case, parties should have the opportunity to request a table of rates to be inserted after AM2017/51 is determined. If (as proposed by ABI) the tables are only being inserted after AM2017/51 is determined, this should present little difficulty.’
[23] It is not entirely clear what is being put by the AMWU. Is it being suggested that awards other than those being determined in AM2017/51 would be varied after that matter is decided? The AMWU will be asked to clarify this submission at the hearing on 11 October 2019.
3.3 Reference to National Training Wage
[24] Ai Group submits that the reference to the ‘Miscellaneous Award 2010’ in the National Training Wage clauses in the Exposure Drafts ‘may require updating.’ The AMWU agrees.
[25] The references to the ‘Miscellaneous Award 2010’ will be updated when the title of that award is varied.
3.4 The ‘note’ in Schedules of Rates
[26] A note in the following terms has been deleted from the Schedules of Rates in the Exposure Drafts:
‘NOTE: Employers who meet their obligations under this schedule are meeting their obligations under the award.’
[27] Ai Group submit that absent a decision by the Commission to remove the note, it should be reinserted. The AMWU supports the deletion of the note. 4
[28] It is our provisional view that the note be deleted as it may give rise to a mistaken belief that compliance with the rates in the Schedule means that all award obligations are met, including, for example, conditions such as leave provisions and meal breaks.
4. Correcting Minor Errors
[29] A number of the submissions received identify minor typographical errors or omissions within exposure drafts. Such minor errors have been identified in the following exposure drafts:
• Aquaculture Industry Award 5
• Aluminium Industry Award 6
• Ambulance and Patient Transport Industry Award 7
• Banking, Finance and Insurance Award 8
• Cement, Lime and Quarrying Award 9
• Cotton Ginning Award 10
• Electrical Power Award 11
• Premixed Concrete Award 12
• Real Estate Industry Award 13
• Salt Industry Award 14
• Seafood Processing Award 15
• Silviculture Award 16
• Water Industry Award 17
• Wool Storage, Sampling and Testing Award 18
[30] Any party who contests the variation of the above exposure drafts to address the minor errors identified is invited to make a submission at the commencement of the hearing on 11 October 2019. Absent any opposition we will amend the exposure drafts and the associated variation determination to address the issues set out in the footnotes to [29] above.
5. Award specific issues
5.1 Aluminium Award
[31] In addition to some minor typographical and cross reference errors Ai Group raise four issues in relation to the Exposure Draft. The AWU submitted that it had no issue with the changes proposed by Ai Group.
(i) Definition and use of the terms ‘ordinary hourly rate of pay’ and ‘ordinary hourly rate’
[32] The Exposure Draft defines ‘ordinary hourly rate of pay’ at clause 2 as follows:
‘ordinary hourly rate of pay means the hourly rate for an employee’s classification specified in clause 16—Minimum rates inclusive of work conditions and disability allowance’
[33] The Exposure Draft variously uses the terms ‘ordinary hourly rate of pay’ and ‘ordinary hours rate’. Ai Group expresses its understanding that in each instance the intention is that both expressions have the same meaning, that is the meaning attributed to ‘ordinary hourly rate of pay’ in clause 2. Ai Group suggests that the Exposure Draft be varied to consistently use the term ‘ordinary hourly rate’.
[34] We agree with Ai Group and it is our provisional view that the Exposure Draft be amended to replace the expression ‘ordinary hourly rate’ with ‘ordinary hourly rate of pay’ in clauses 10.7, 11.3, 16.3(ii), 20.4I, 22.5(a) and Schedule B.
(ii) Definition of ‘roster’
[35] Clause 2 of the Exposure Draft defines ‘roster’ as follows:
‘roster means a calendar identifying the days/shifts on which an employee is required to work’
[36] The current award defines roster as follows:
‘roster means a calendar of days identifying the days/shifts on which an employee is (or employees are) required to work’
[37] Ai Group submits that the definition in the Exposure Draft should be replaced by the current definition in the award and says:
‘We are concerned that a calendar identifying the days/shifts on which multiple employees are required to work would not meet the definition of ‘roster’ at clause 2. This may have substantive implications, for example, for the operation of clause 14.4 – 14.6 of the instrument.’
[38] Clauses 14.4 to 14.6 of the Exposure Draft state:
‘14.4 Rosters
(a) An employer may introduce a roster (including shift start and finish times) which meets the following requirements:
(i) the average rostered hours over the roster cycle for an employee does not exceed 44 rostered hours of work per week;
(ii) the maximum number of consecutive shifts for an employee does not exceed 7;
(iii) the maximum number of shifts for an employee in any 14 consecutive calendar days does not exceed 12; and
(iv) the maximum number of consecutive shifts for an employee, where the rostered shift length exceeds 10 hours, does not exceed four 4 shifts.
(b) The employer and the majority of the affected employees may agree to introduce a roster which does not comply with the requirements of clause 14.4(a).
14.5 Change of roster
(a) An employer may implement or change a roster to meet its operational requirements, having regard to the health and safety of the employees.
(b) The employer must give affected employees two2 weeks’ notice of any new roster or any change to a roster.
(c) The period of notice in clause 14.5(b) may be reduced by agreement between the employer and the majority of affected employees.
14.6 Change of place on a roster
(a) An employer may vary an employee’s place on a roster (that is, may transfer the employee from one crew to another) and may vary the employee’s start and finish times.
(b) An employer must give an employee 48 hours’ notice of a variation under clause 14.6(a) or a shorter period where that is agreed between the employer and the employee.
(c) Where a shorter period is agreed under clause 14.6(b), any ordinary hours worked by the employee between the start of the variation and the expiry of 48 hours’ notice will be paid at overtime rates.’
[39] It is our provisional view that the definition of ‘roster’ in clause 2 be amended as follows:
‘roster’ means a calendar of days identifying the days/shifts on which employees are required to work.’
(iii) Clauses 14.1(f) Ordinary hours of work
[40] Clauses 14.1(e) and (f) states:
‘(e) An employer may agree with an employee or with a majority of affected employees, to alter the span of hours to suit operational and employee needs.
(f) Any time worked outside the ordinary hours of any shift or outside the span of hours in clause 14.1(d) is overtime. An employee will be advised in writing of which hours in the roster cycle are ordinary hours and which hours are overtime.’
[41] Ai Group submits that clause 14.1(f) ‘neglects to contemplate the operation of clause 14.1(e), which provides that an employer may agree with an employee or with the majority of affected employees, to alter the span of hours.’
[42] Ai Group submits that this issue could be addressed by amending clause 14.1(f), as follows:
‘Any time worked outside the ordinary hours of any shift or outside the span of hours in clause 14.1(d) (or as agreed in accordance with clause 14.1I) is overtime. An employee will be advised in writing if which hours in the roster cycle are ordinary hours and which hours are overtime.” (underline is proposed insertion)’
[43] It is our provisional view that the amendment proposed by Ai Group be adopted.
(iv) Clause 20.8 Make up time
[44] Ai Group submits that clause 20.8 ‘appears to unnecessarily repeat the substance of clause 14.9’ and that make-up time is more appropriately dealt with alongside other provisions dealing with ordinary hours. On this basis it is submitted that clause 20.8 should be deleted and clause 14.9 retained.
[45] Clause 14.9 states:
‘With the employer’s consent, an employee may work make-up time under which the employee does not work ordinary hours in accordance with the employee’s roster but works ordinary hours at a later time within the same roster cycle.’
[46] Clause 20.8 states:
‘An employee may elect, with the consent of the employer, to work make-up time under which the employee does not work ordinary hours in accordance with the employee’s roster but works those hours at a later time within the same roster cycle.’
[47] It is our provisional view that clause 20.8 be deleted and clause 14.9 be amended to read:
‘An employee may elect, with the consent of the employer, to work make-up time under which the employee does not work ordinary hours in accordance with the employees’ roster but works those hours at a later time within the same roster cycle.’
[48] The AWU raise two issues in relation to the Exposure Draft. The first concerns clause 22.1(b) which states:
‘22.1 Annual leave
…
(b)an employer may convert the annual leave entitlement in the NES to an equivalent ordinary hour entitlement for administrative ease (for example 152 hours for a full-time employee entitled to four 4 weeks’ of annual leave and190 hours for a continuous shiftworker).’
[49] The AWU submits that:
‘Consideration should be given to deleting the entire subclause or at least the bracketed example because the content is arguably inconsistent with the National Employment Standards (“NES”) based on the Full Bench decision in RACV 19 i.e. accruing the specified hours may not be sufficient to enable an employee to access their full NES entitlement.’20
[50] The second issue concerns clause 27.2, which states:
‘27.2 Where an employee works on a public holiday they will be paid in accordance with clause 21.3.’
[51] The AWU submit that clause 27.2 be amended to read:
‘Where an employee works on a public holiday they will be paid in accordance with clause 21.3 or 29.1(a)(ii).’
[52] It is submitted that this change ‘captures the rate of pay for ordinary hours and overtime worked on a public holiday.
5.2 Ambulance and Patient Transport Industry Award
[53] Clause 22.3 of the Exposure Draft states:
‘22.3 Payment for annual leave
(a) Before going on annual leave, an employee will be paid the amount of wages they would have received for ordinary time worked had they not been on leave during that period. This includes any allowances, loading, shift allowance penalties or over-award payments which would have been received had the employee not been on leave.
(b) In addition, the employer must pay the employee a loading of 17.5% of the employee’s ordinary pay for ordinary hours the employee would have worked had they not been on leave during that period.
(c) Electronic funds transfer (EFT) payment of annual leave despite anything else in clause 17, an employee paid by electronic funds transfer (EFT) may be paid in accordance with their usual pay cycle while on paid annual leave.
NOTE: Where an employee is receiving over award payments such that the employee’s base rate of pay is higher than the rate specified under this award, the employee is entitled to receive the higher rate while on a period of paid annual leave (see sections 16 and 90 of the Act).’
[54] Clause 30.4 of the current award states:
‘Before going on annual leave, an employee will be paid the amount of wages they would have received for ordinary time worked had they not been on leave during that period. This includes any allowances, loading, shift penalties or overaward payments which would have been received had the employee not been on leave.’
[55] United Voice submit that the current award at clause 30.4 expressly includes shift penalties and states that payment for annual leave will include ordinary time wages including ‘any allowances, loading, shift penalties or over award payments which would have been received had the employee not been on leave’. They submit that in the exposure draft at clause 22.3(a), ‘penalties’ has been crossed out and replaced with ‘allowances’. United Voice submit that the award contains both shift allowances (clause 18.2(g)) and shift penalties (clause 21.1), and the exclusion of shift penalties would be a substantive change and could result in a reduction in employees’ annual leave entitlements. 21 They submit that clause 22.3(a) of the exposure draft should be amended as follows:
“…This includes any allowances, loading, shift allowances, penalties or over-award payments which would have been received had the employee not been on leave.”
5.3 Animal Care and Veterinary Services Award
[56] Two issues arise in respect of this award. The first concerns clause 31 which states:
‘31. Termination of employment
‘NOTE: The NES sets out requirements for notice of termination by an employer. See sections 117 and 123 of the Act.
31.1 Notice of termination by an employee
(a) Clause 31.1 applies to all employees except those identified in sections 123(1) and 123(3) of the Act.
(b) An employee must give the employer notice of termination in accordance with Table 1—Period of notice of at least the period specified in column 2 according to the period of continuous service of the employee specified in column 1.’
Table 1—Period of notice Column 1
|
Column 2
| |
Not more than 1 year |
1 week | |
More than 1 year but not more than 3 years |
2 weeks | |
More than 3 years but not more than 5 years |
3 weeks | |
More than 5 years |
4 weeks |
(c) In clause 31.1(b) continuous service has the same meaning as in section 117 of the Act.
(d) If an employee who is at least 18 years old does not give the period of notice required under clause 31.1(b), then the employer may deduct from wages due to the employee under this award an amount that is no more than one week’s wages for the employee.
(e) If the employer has agreed to a shorter period of notice than that required under clause 31.1(b), then no deduction can be made under clause 31.1(d).
(f) Any deduction made under clause 31.1(d) must not be unreasonable in the circumstances.
31.2 Job search entitlement
(a) Where an employer has given notice of termination to an employee, the employee must be allowed time off without loss of pay of up to one day for the purpose of seeking other employment.
(b) The time off under clause 31.1(c) is to be taken at times that are convenient to the employee after consultation with the employer.’
[57] United Voice submit that the notice of termination period has been amended in clause 11.1(b) of the current award but it is not reflected in clause 31 of the Exposure Draft. It submits that the Exposure Draft should be amended to take account of decision [2019] FWCFB 5409 at [56]. We agree and our provisional view is that clause 31 be varied to reflect determination PR711488.
[58] The second issue concerns the higher duties at clause 15.7(a)(ii) of the Exposure Draft which states:
‘(ii) Any employee who is required to perform work for which a lower rate is paid must not suffer any reduction in wages; provided the duration of the work is less than one week.’
[59] United Voice submit that clause 15.7(a)(ii) does not to accurately reflect the current clause 16.2(c)(ii). Clause 16.2(c)(ii) of the current award states:
‘(ii) Any employee who is required to perform work temporarily for which a lower rate is paid must not suffer any reduction in wages whilst so employed; provided that any work of less than one week’s duration will be deemed to be temporary.’
[60] United Voice submits that the current clause places a limitation on the maximum period of time an employee (who is not a veterinary surgeon) can be required to temporarily perform work at a lower classification (one week) and stipulates that an employee must not suffer any reduction in wages over that period. 22 United Voice contends that clause 15.7(a)(ii) of the Exposure Draft suggests that if an employee was required to work at a lower classification for a period of over one week, the employer may be able to pay the employee a lower wage rate23 and contends that this deviates from the current clause and is detrimental to employees. United Voice propose clause 15.7(a)(ii) of the exposure draft be re-worded as follows:
‘Any employee who is required to temporarily perform work for which a lower rate is paid for must not suffer any reduction in wages. An employee may be required to temporarily perform work at a lower classification for a period of less than one week.’
[61] We agree and our provisional view is that clause 15.7(a)(ii) be amended as proposed by United Voice.
5.4 Aquaculture Industry Award
[62] The AWU raises three issues in respect of the Exposure Draft.
(i) Clause 20.1(a)(ii)
[63] Clause 20.1(a)(i) states:
‘20.1 Definition of overtime
(a) Overtime work is any work performed:
(i) outside the spread of ordinary hours on any day or shift as defined in clauses 13.2 and 13.3;
(ii) in excess of 38 hours per week or in excess of 10 hours per day; or
(iii) by an employee on a shift other than a rostered shift.’
[64] The AWU submits this should be amended to read ‘outside the spread of ordinary hours on any day or shift as defined in clauses 13.2, 13.3 and 21.’ It is submitted that the definitions of afternoon and night shift appear in clause 21 not 13.3.
(ii) Clause 20.8(b)
[65] Clause 20.8(b) states:
‘20.8 Breaks during overtime
…
(b) Where overtime is to be worked immediately after the completion of ordinary hours and the period of overtime is to be more than one and a half hours, an employee, before starting the overtime will be allowed a meal break of 20 minutes, to be paid at the employee’s minimum hourly rate.’
[66] Clause 21.3(b) of the current award states:
‘22.3 Rest period after overtime
(a) When overtime work is necessary it must, wherever reasonably practicable, be arranged so that an employee has at least 10 consecutive hours off duty between the work of successive working days.
(b) An employee who works so much overtime between the termination of their ordinary hours on one day and the commencement of their ordinary hours on the next day that the employee has not had at least 10 consecutive hours off duty between those times must, subject to the other provisions of clause 22.3, be released after completion of the overtime until the employee has had 10 consecutive hours off duty without loss of pay for ordinary hours occurring during such absence.
(c) If on the instructions of the employer an employee resumes or continues work without having had the 10 consecutive hours off duty the employee must be paid at the rate of double time until the employee is released from duty for such period. The employee is then entitled to be absent until the employee has had 10 consecutive hours off duty without loss of pay for ordinary hours occurring during the absence.
(d) By agreement between the employer and individual employee, the 10 hour break provided for in clause 22.3 may be reduced to a period of no less than eight hours.
(e) The provisions of clause 22.3 will apply in the case of a shiftworker as if eight hours were substituted for 10 hours when overtime is worked:
(i) for the purpose of changing shift rosters; or
(ii) where a shiftworker does not report for duty and a day worker or a shiftworker is required to replace the shiftworker; or
(iii) where a shift is worked by arrangement between the employees themselves.’
[67] The AWU submits:
‘The exposure draft refers to payment at the “minimum hourly rate” for twenty minutes where more than 1 � hours of overtime is to be worked after ordinary hours. Clause 21.3(b) of the current award refers to payment at “ordinary rates”. The term “ordinary rates” would include shift loadings and weekend penalty rates but the term “minimum hourly rate” does not. This means the exposure draft reduces the current condition and creates an anomalous outcome whereby an employee may fall onto a lower rate.’ 24
(iii) Clause 27.3
[68] The second issue concerns clause 27.3, which states:
‘27. Public holidays
…
27.3 Where an employee works on a public holiday or another day substituted in accordance with clause 27.2 they will be paid in accordance with clauses 21.3 or 20.6.’
[69] The AWU submits:
‘This should be amended to read: “Where an employee works on a public holiday or another day substituted in accordance with clause 27.2 they will be paid in accordance with clauses 20.6, 21.3 or 21.5(c).” The rate for ordinary time worked by day workers on a public holiday is contained in clause 21.5(c).’ 25
5.5 Banking, Finance and Insurance Award
[70] Clause 13.7(d) of the Exposure Draft states:
‘(d) Shiftwork penalties
The following loadings shiftwork penalties will apply in relation to the working of shiftwork on Monday to Friday and on Saturday between 8.00 am and 12.00 pm:
% of minimum hourly rate | |
Early morning shift |
112.5 |
Afternoon shift1 |
120 |
Night shift1 |
125 |
Employees who permanently work afternoon or night shift or a combination thereof will be paid an additional 5% loading | |
[71] Ai Group submit that the amendments made to clause 13.7(d) do not adequately address the concerns they previously raised about the characterisation of shift loadings/penalties. They submit that the clause purportedly requires the payment of a penalty, but in fact the clause however prescribes a rate that is payable for such time worked; the amount prescribed is not a penalty that is payable in addition to the base rate of pay. 26
[72] Ai Group propose the following rewording to clause 13.7(d) and note that this clause may require further consideration once the decision in relation to annual leave loading clauses has been issued by the Commission:
“(d) Shiftwork penalties penalty rates
The following shiftwork penaltyies rates will apply in relation to the working of shiftwork on Monday to Friday and on Saturday between 8:00am and 12:00pm:…”
[73] It is our provisional view that clause 13.7(d) be varied as proposed by Ai Group.
5.6 Cement, Lime and Quarrying Award
[74] Five issues arise in relation to the Exposure Draft.
(i) Definition of ‘ordinary hourly rate’
[75] Clause 2 of the Exposure Draft defines ‘ordinary hourly rate’ as follows:
‘ordinary hourly rate means the hourly rate for an employee’s classification specified in clause 16—Minimum ratesMinimum rates, inclusive of the industry allowance. Where an employee is entitled to an additional all-purpose allowance, this allowance forms part of the employee’s ordinary hourly rate.’
[76] Ai Group propose that the definition be amended to make clear that where an employee is entitled to all-purpose allowances in addition to the industry allowance, they are to be included in the employee’s ordinary hourly rate. Ai Group submit that the current definition may be read to suggest that such allowances are to be included in lieu of the industry allowance. 27 We note that the same issue is raised in relation to the Mining Award and consider it would be preferable if there is a consistent outcome.
(ii) Clause 11.4 Casual conversion
[77] Clause 11.4 of the Exposure Draft states:
‘11.4 Casual conversion to full-time or part-time employment
(a) Eligible casual employee
An eligible casual employee is a casual employee:
(i) who works on a regular and systematic basis;
(ii) who is employed for a sequence of periods of six6 months; and
(iii) whose employment is to continue beyond the period of six6 months.
An eligible casual employee has the right, after six6 months, to elect to have their contract of employment converted to full-time or part-time employment.
(b) Notice and election of casual conversion
(i) An employer of an eligible casual employee must give the employee notice in writing of the provisions of clause 11.4 within four4 weeks of the employee having reached the six6 month period.
(ii) The employee retains their right of election under clause 11.4 if the employer fails to comply with clause 11.4(b)(i).
(iii) An eligible casual employee may give four4 weeks’ notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment either:
• upon receiving notice under clause 11.4(b)(i); or
• after the expiry of the time for giving notice.
(iv) An eligible casual employee who does not elect to convert their contract of employment to full-time or part-time employment within four4 weeks of receiving written notice is deemed to have elected against any conversion.
(c) Full-time or part-time conversion
(i) An eligible casual employee who has worked on a full-time basis throughout their period of employment has the right to elect to convert their contract of employment to full-time employment.
(ii) An employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert their contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked.
(iii) However, the employer and the employee may agree on an alternative arrangement.
(iv) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 11.4(b)(iii), the employer and employee must, subject to clause 11.4(b)(iii), discuss and agree on:
• which form of employment the employee will convert to, being full-time or part-time; and
• if the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 10.2.
(v) Following agreement being reached, the employee converts to full-time or part-time employment.
(d) Employer consent or refusal to casual conversion
(i) The employer must consent or refuse the election within four4 weeks of receiving notice of the eligible casual employee’s election. The employer must not unreasonably refuse consent to the election.
(ii) Where an employer refuses an election to convert, the reasons for doing so must be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.
(iii) After an employee has converted to a full-time or part-time employee, they may only revert to casual employment by written agreement with the employer.’
(e) Variation of the casual conversion six-month eligibility period
(i) Clause 11.4(a) may be varied as if the reference to six6 months is a reference to 12 months by agreement between the employer and:
• the majority of the employees in the workplace;
• the majority of the employees in a section or sections of the workplace; or
• the casual employee concerned.
(f) An employee must not be engaged and re-engaged to avoid any obligation under this award.
(i) An agreement to vary the six-month period with an individual employee must be reached within the two2 months before the period of six6 months referred to in clause 11.4(a).
(ii) The employer may only make an agreement with an individual employee or group of employees who are currently engaged.
(iii) Any agreement reached must be kept by the employer as a time and wages record.’
[78] The casual conversion clause in the current Cement and Lime Award 2010 is at clause 10.7 and states:
‘10.7 Casual conversion to full-time or part-time employment
(a) A casual employee, other than an irregular casual employee, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of six months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time employment if the employment is to continue beyond the conversion process.
(b) Every employer of such an employee must give the employee notice in writing of the provisions of clause 10.7 within four weeks of the employee having attained such period of six months. The employee retains their right of election under clause 10.7 if the employer fails to comply with clause 10.7(b).
(c) Any such casual employee who does not within four weeks of receiving written notice elect to convert their contract of employment to full-time or part-time employment is deemed to have elected against any such conversion.
(d) Any casual employee who has a right to elect under clause 10.7(a), on receiving notice under clause 10.7(b) or after the expiry of the time for giving such notice, may give four weeks’ notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment, and within four weeks of receiving such notice the employer must consent to or refuse the election but must not unreasonably so refuse.
(e) Once a casual employee has elected to become and has been converted to a full-time or part-time employee, the employee may only revert to casual employment by written agreement with the employer.
(f) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 10.7(d), the employer and employee must, subject to clause 10.7(d), discuss and agree on:
(i) which form of employment the employee will convert to, being full-time or part-time; and
(ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clauses 10.4(a) and 10.4(b).
(g) An employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert their contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed on between the employer and employee.
(h) Following such agreement being reached, the employee converts to full-time or part-time employment.
(i) Where, in accordance with clause 10.7(d), an employer refuses an election to convert, the reasons for doing so must be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.
(j) By agreement between the employer and the majority of the employees in the relevant workplace or a section or sections of it, or with the casual employee concerned, the employer may apply clause 10.7(a) as if the reference to six months is a reference to 12 months, but only in respect of a currently engaged individual employee or group of employees. Any such agreement reached must be kept by the employer as a time and wages record. Any such agreement reached with an individual employee may only be reached within the two months prior to the period of six months referred to in clause 10.7(a).
(k) For the purposes of clause 10.7, an irregular casual employee is one who has been engaged to perform work on an occasional, non-systematic or irregular basis.’
[79] The casual conversion clause in the current Quarrying Award 2010 is at clause 13.4 and states:
‘13.4 Casual conversion to full-time or part-time employment
(a) A casual employee, other than an irregular casual employee, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of six months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time employment if the employment is to continue beyond the conversion process.
(b) Every employer of such an employee must give the employee notice in writing of the provisions of clause 13.4 within four weeks of the employee having attained such period of six months. The employee retains their right of election under clause 13.4 if the employer fails to comply with clause 13.4(b).
(c) Any such casual employee who does not within four weeks of receiving written notice elect to convert their contract of employment to full-time or part-time employment is deemed to have elected against any such conversion.
(d) Any casual employee who has a right to elect under clause 13.4(a), on receiving notice under clause 13.4(b) or after the expiry of the time for giving such notice, may give four weeks notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment, and within four weeks of receiving such notice the employer must consent to or refuse the election but must not unreasonably so refuse.
(e) Once a casual employee has elected to become and been converted to a full-time or part-time employee, the employee may only revert to casual employment by written agreement with the employer.
(f) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 13.4(d), the employer and employee must, subject to clause 13.4(d), discuss and agree on:
(i) which form of employment the employee will convert to, being full-time or part-time; and
(ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 12—Part-time employees.
(g) An employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert their contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed on between the employer and employee.
(h) Following such agreement being reached, the employee converts to full-time or part-time employment.
(i) Where, in accordance with clause 13.4(d) an employer refuses an election to convert, the reasons for doing so must be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement.
(j) By agreement between the employer and the majority of the employees in the relevant workplace or a section or sections of it, or with the casual employee concerned, the employer may apply clause 13.4(a) as if the reference to six months is a reference to 12 months, but only in respect of a currently engaged individual employee or group of employees. Any such agreement reached must be kept by the employer as a time and wages record. Any such agreement reached with an individual employee may only be reached within the two months prior to the period of six months referred to in clause 13.4(a).
(k) For the purposes of clause 13.4, an irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.’
[80] With regards to the casual conversion clause at 11.4, Ai Group refer to and rely upon their submissions of 11 July 2017 28 at paragraphs 54-71, and their submissions of 19 January 2018.29 They state that these issues appear to be outstanding and refer to the decision [2019] FWCFB 6077, in which the Full Bench referred to the outstanding drafting of the casual conversion clauses in the 28 modern awards that had such clauses prior to the Review. Ai Group contend that clause 11.4 of the exposure draft is in substantively different terms from the current casual conversion clause in the relevant awards and therefore the draft determinations to vary the Cement and Lime Award 2010 and revoke the Quarrying Award 2010 should not become operative until these matters are resolved.30
[81] We agree with Ai Group and it is our provisional view that the current casual conversion clause be inserted in the Exposure Draft variation determination pending the resolution of issues associated with the drafting of the term.
(iii) Clauses 4.4 and 4.5
[82] ABI contend that the references to ‘cement and lime and quarrying industry’ in clauses 4.4 and 4.5 are problematic. The industries are separately defined but there is no definition of the ‘cement and lime and quarrying industry’ and retention of this phrase may be interpreted as requiring membership of both industries. ABI submits that ‘cement and lime industry’ and ‘quarrying industry’ should be used. 31
[83] We agree with ABI and it is our provisional view that the Exposure Draft and variation determination be varied such that the reference to ‘cement and lime and quarrying industry’ in clauses 4.4 and 4.5 are deleted and that the words ‘cement and lime industry and quarrying industry’ be inserted instead.
(iv) Clause 27.2
[84] Clause 27.2 states:
‘27. Public holidays
27.2 Where an employee works on a public holiday they will be paid in accordance with clause 21.6.’
[85] The AWU submits:
‘This should be amended to read: “Where an employee works on a public holiday they will be paid at the rate of 250% of the ordinary hourly rate and a casual employee must be paid at 275% of the ordinary hourly rate.” This amendment clarifies the entitlement for day workers and for overtime given clause 21.6 of the exposure draft is arguably confined to ordinary time worked by shift workers.’ 32
(v) Schedules C and D
[86] The AWU submits ‘the casual overtime rates are incorrect because the 25% casual loading has not been included. This issue is before the Casual Overtime Full Bench. The AWU is opposed to casual overtime rates tables being published which do not include the 25% casual loading.’
5.7 Cemetery Industry Award
[87] The AWU raises an issue concerning clause 10.2, which reads:
‘10.2 A casual employee must be paid per ordinary hour worked:
(a)the ordinary hourly rate appropriate to the employee’s classification; and
(b)a loading of 25% of the ordinary hourly rate.’
[88] The AWU submits:
‘This should be amended to read: “A casual employee must be paid per ordinary hour worked…” The word “ordinary” does not appear in clause 10.3(b) of the current award. The wording in the exposure draft may constitute a significant substantive change. The issue is before the Casual Overtime Full Bench and the wording from the current award should be maintained until the issue is resolved in those proceedings.’
5.8 Cotton Ginning Award
[89] Six issues arise in relation to the Exposure Draft.
(i) Definition of ‘ordinary hourly rate’
[90] Clause 2 of the Exposure Draft defines ‘ordinary hourly rate’ as follows:
‘ordinary hourly rate means the hourly rate for the employee’s classification specified in clause 17—Minimum rates, inclusive of the industry allowance. Where an employee is entitled to an additional all purpose allowance, this allowance forms part of that employee’s ordinary hourly rate’
Ai Group submit that the reference to the ‘industry allowance’ should be replaced with ‘disability allowance’ as neither the current award nor the Exposure Draft prescribe an industry allowance. 33 Second, Ai Group suggests that the definition be amended to make clear that where an employee is entitled to all-purpose allowances in addition to the disability allowance, they are to be included in the employees’ ordinary hourly rate in addition to the disability allowance, consistent with the current award. They contend that the current definition could be read to suggest that such allowances are to be so included in lieu of the disability allowance.34
‘Ordinary hourly rates means the hourly rate for the employee’s classification specified in clause 17 – Minimum rates, inclusive of the industrydisability allowance. Where an employee is entitled to an additional all purpose allowance, this allowance also forms part of that employee’s ordinary hourly rate.’
(ii) Clause 4.2 Coverage
[91] Clause 4.2 of the Exposure Draft states:
‘This award covers any employer which supplies labour on an on-hire basis in the cotton ginning industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclauseClause 4.2 operates subject to the exclusions from coverage in this award.’
[92] Ai Group submits that the reference to the ‘cotton ginning industry’ is potentially confusing and ambiguous because:
‘Unlike most industry awards, the coverage of the Cotton Ginning Award is not expressed by reference to an industry, the scope of which is defined by the award. Rather, the award is simply expressed to apply to employers operating cotton ginneries and their employees in the classification structure of the award.’ 35
[93] For these reasons Ai Group submits that the changes proposed to the first sentence of clause 4.2 should not be made.
[94] The AWU does not agree with the concerns raised by Ai Group about references to the industry coverage of the award.
(iii) Clause 4.3 Coverage
[95] Clause 4.3 of the Exposure Draft states:
‘This award covers employers which provide group training services for trainees engaged in the cotton ginning industry and/or parts of the cotton ginning industry set out in clause 4.1 and those trainees engaged by a group training service hosted by a company to perform work at a location where the activities described in clause 4.1 are being performed. This subclauseClause 4.3 operates subject to the exclusions from coverage in this award.’
[96] For the reasons advanced in relation to (ii) above Ai Group submits that the changes proposed to the first sentence of clause 4.3 should not be made.
[97] As noted above, the AWU does not agree with the concerns raised by Ai Group about reference to the industry coverage of the award.
(iv) Clause 11.5 Casual conversion
[98] The casual conversion clause in the current award is at clause 10.5 and states:
‘10.5 Casual conversion
(a) A casual employee engaged by a particular employer on a regular and systematic basis for a sequence of periods of employment under this award during a calendar period of 12 months will have the right to elect to have their ongoing contract of employment converted to permanent full-time employment or part-time employment if the employment is to continue beyond the conversion process prescribed by this subclause.
(b) Every employer of a casual employee who seeks to convert to full-time or part-time employment will give the employee notice in writing of the provisions of this subclause within four weeks of the employee having attained the period of 12 months. However, the employee retains their right of election under this subclause if the employer fails to comply with this notice requirement.
(c) Any casual employee who has a right to elect under clause 10.5(a) upon receiving notice under clause 10.5(b) or after the expiry of the time for giving such notice, may give four weeks’ notice in writing to the employer that they seek to elect to convert their ongoing contract of employment to full-time or part-time employment, and within four weeks of receiving such notice from the employee, the employer must consent to or refuse the election, but must not unreasonably so refuse. Where an employer refuses an election to convert, the reasons for doing so must be fully stated and discussed with the employee concerned, and a genuine attempt must be made to reach agreement. Any dispute about a refusal of an election to convert an ongoing contract of employment must be dealt with as far as practicable and with expedition through the disputes settlement procedure.
(d) Any casual employee who does not, within four weeks of receiving written notice from the employer, elect to convert their ongoing contract of employment to full-time employment or part-time employment will be considered to have elected against any such conversion.
(e) Once a casual employee has elected to become and been converted to a full-time employee or a part-time employee, the employee may only revert to casual employment by written agreement with the employer.
(f) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment in accordance with clause 10.5I, the employer and employee must discuss and agree upon:
(i) whether the employee will convert to full-time or part-time employment; and
(ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked are to be consistent with any other part-time employment provisions of this award;
provided that an employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to full-time employment and an employee who has worked on a part-time basis during the period of casual employment has the right to elect to convert their contract of employment to part-time employment, on the basis of the same number of hours and times of work as previously worked, unless other arrangements are agreed between the employer and the employee.
(g) Following an agreement being reached, the employee must convert to full-time or part-time employment. If there is any dispute about the arrangements to apply to an employee converting from casual employment to full-time or part-time employment, it must be dealt with as far as practicable and with expedition through the disputes settlement procedure.
(h) An employee must not be engaged and re-engaged, dismissed or replaced in order to avoid any obligation under this subclause.’
[99] Ai Group rely on the same submissions advanced in relation to the casual conversion clause in the Cement, Lime and Quarrying exposure draft 36 and contend that clause 11.5 of the Exposure Draft is in substantively different terms to the casual conversion clause in the current award and submit that the proposed draft determination to vary the Cotton Ginning Award 2010 should not become operative until these matters are resolved.37
[100] We agree with Ai Group and it is our provisional view that the current casual conversion clause be inserted in the Exposure Draft variation determination pending the resolution of issues associated with the drafting of the term.
(v) Schedule A: Summary of hourly rates of pay
[101] Ai Group submit that the footnotes in Schedule A refer to an industry allowance and should be amended to instead refer to the disability allowance. 38
(vi) Schedule B.2.2
[102] The AWU submits that the ‘Ordinary hours’ column can be deleted.
5.9 Funeral Industry Award
[103] The AWU raise three issues in relation to the Exposure Draft.
(i) Clause 11.2
[104] Clause 11.2 states:
‘11.2 For each ordinary hour worked a casual employee must be paid:
(a) the minimum hourly rate for the appropriate classification; and
(b) a loading of 25% of the minimum hourly rate.’
[105] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked a casual employee must be paid…” The word “ordinary” does not appear in clause 10.5(b) of the current award. The wording in the exposure draft may constitute a significant substantive change. The issue is before the Casual Overtime Full Bench and the wording from the current award should be maintained until the issue is resolved in those proceedings.’
(ii) Schedule A.1.4
[106] The AWU submits that the overtime rate for afternoon shift is not 120% as stated in the first column and the correct rates appear in clause 20.6.
[107] Clause 20.6 states:
‘20.6 Overtime for shiftworkers—Afternoon shiftworker
(a) All time worked in excess of, or outside the ordinary working hours in clause 18.2 20.2 by a shiftworker, or on a shift other than a rostered shift, will be paid at 170% of the minimum hourly rate for the first three3 hours and 220% thereafter.
(b) When less than 7 hours 36 minutes’ notice has been given to the employer by a relief employee that they will be absent from work, and the employee whom the relief employee should relieve is not relieved and is required to continue to work on the employee’s rostered day off, the unrelieved employee will be paid 220% of the minimum hourly rate.
(c) This cClause 20.6 operates to the exclusion of clause 18.520.5.’
(iii) Schedule A.1.5
[108] The AWU submits that it is not unclear why a 100% ‘Day shift’ column has been included in an overtime rates table.
5.10 Hydrocarbons Industry (Upstream) Award
[109] The AWU raises two issues in relation to this Exposure Draft. The first concerns clause 11.4, which states:
‘11.4 For each ordinary hour worked, a casual employee must be paid no less than:
the ordinary hourly rate; and
(b) a loading of 25% of the ordinary hourly rate, for the classification in which they are employed.’
[110] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked, a casual employee must be paid no less than…” The word “ordinary” does not appear in clause 10.4(b) of the current award. The wording in the exposure draft may constitute a significant substantive change. The issue is before the Casual Overtime Full Bench and the wording from the current award should be maintained until the issue is resolved in those proceedings.’ 39
[111] The second issue concerns clauses 22.1(b) and (c), which state:
‘22.1 Definition of overtime
…
(b) For a part-time employee, overtime is any time worked in excess of the part-time employee’s ordinary hours of work in clause 10—Part-time employees.
(c) For a casual employee overtime is any time worked in excess of the ordinary hours prescribed for casual employees in clause 11—Casual employees.’
[112] The AWU submits that ‘Reference should be added to clause 13 – Ordinary hours of work because the span of ordinary hours for all employees appears in this clause. 40
5.11 Mining Industry Award
[113] Clause 2 of the Exposure Draft defines ‘casual ordinary hourly rate’ as follows:
‘casual ordinary hourly rate means the hourly rate for a casual employee for the employee’s classification specified in clause 15—Minimum rates and classifications plus the casual loading and the industry allowance. Where an employee is entitled to an additional all-purpose allowance, this allowance forms part of that employee’s ordinary hourly rate.’
[114] Ai Group submit that the definition of ‘casual ordinary hourly rate’ in clause 2 of the exposure draft be amended to make clear that where an employee is entitled to all-purpose allowances in addition to the industry allowance, they are to be included in the casual ordinary hourly rate in addition to the industry allowance. Ai Group submits that the current definition may be read to suggest that such allowances are to be so included in lieu of the industry allowance. 41
[115] Ai Group make a similar submission in relation to the definition of ‘ordinary hourly rate’ and submit that this definition should also be amended to make clear that where an employee is entitled to all-purpose allowances in addition to the industry allowance, they are to be included in the ordinary hourly rate in addition to the industry allowance. 42
[116] The AWU has no issue with the changes proposed by Ai Group.
[117] The AMWU does not agree that either the definition of ‘casual ordinary hourly rate’ or the ‘ordinary hourly rate’ are capable of being misconstrued in the manner suggested by Ai Group. If the Commission is of the view that the definitions require amendments then the AMWU submits that the following form of words would be appropriate:
‘casual ordinary hourly rate means the hourly rate for a casual employee for the employee’s classification specified in clause 15 – Minimum rates and classifications plus the casual loading and the industry allowance. Where an employee is entitled to an additional all-purpose allowance, this allowance also forms part of that employee’s ordinary hourly rate.
ordinary hourly rate means the hourly rate for an employee’s classification specified in clause 15 – Minimum rates and classifications plus the industry allowance. Where an employee is entitled to an additional all-purpose allowance, this allowance also forms part of that employee’s ordinary hourly rate.’
[118] Ai Group will be invited to respond to the AMWU’s proposal (or provide an alternative) at the hearing on 11 October 2019.
5.12 Nursery Award
[119] The AWU raises an issue in relation to clause 13.2 of the Exposure Draft. Clause 13.2 states:
‘13.2 Ordinary hours of work
(a) The ordinary hours of work for full-time employees are an average of 38 per week but not exceeding 152 hours in 28 days.
(b) The ordinary hours of work may be worked between the hours of 6.00 am and 6.00 pm on any five5 out of seven7 days. Provided that the ordinary hours of work may be worked between 6.00 am and 9.00 pm on one day per week between Monday and Friday.
(c) The ordinary hours of work will not exceed eight8 hours on any day, provided that by arrangement between an employer and an employee ordinary working hours greater than eight8 but not exceeding 10 on any day may be worked subject to:
(i) the employer and employee concerned being guided by relevant occupationalwork health and safety provisions;
(ii) suitable roster arrangements being made; and
(iii) proper supervision being provided.’
[120] The AWU submits that ‘to ensure compliance with s 147’ a new subclause should be inserted’, as follows:
‘The ordinary hours of work for casual employees are the lesser of:
(i) an average of 38 per week but not exceeding 152 hours in 28 days; or
(ii) the hours required to be worked by the employer.’
5.13 Oil Refining and Manufacturing Award
[121] Seven issues arise in respect of this award.
(i) Clause 11.3(a)
[122] Clause 11.3(a) states:
‘11.3 Casual loading
(a) For each ordinary hour worked, a casual employee must be paid:
(i) the ordinary hourly rate; and
(ii) a loading of 25% of the ordinary hourly rate,
for the classification in which they are employed.’
[123] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked, a casual employee must be paid…” The word “ordinary” does not appear in clause 10.3(b) of the current award. The wording in the exposure draft may constitute a significant substantive change. The issue is before the Casual Overtime Full Bench and the wording from the current award should be maintained until the issue is resolved in those proceedings.’ 43
(ii) Schedule C.2.1
[124] Schedule C.2.1 of the exposure draft provides as follows:
“The following expense-related allowances will be payable to employees in accordance with clause 19.3
Allowance |
Clause |
$ |
Payable |
Meal allowance—overtime |
19.3(a) |
14.70
|
per meal |
[125] Clause 19.3(a)(i) states as follows:
“An employee will be paid a meal allowance of $14.70 on each occasion that the employee is entitled to a rest break during overtime work in accordance with clause 22—Overtime”
[126] AMWU submit that the term ‘per meal’ in the payable column should be changed to ‘per rest break’, to better reflect the frequency with which the allowance is payable in accordance with clause 19.3(a)(i). 44
[127] Ai Group also raise an issue in relation to the table and submit that, consistent with clause 19.3(a), the reference to ‘per meal’ should be replaced with ‘per occasion’. 45
[128] It is our provisional view that the table in Schedule C.2.1 be amended as proposed by Ai Group.
(iii) Clauses 23.2 and 23.7(b)
[129] Clauses 23.2 and 23.7(b) state:
‘23.2 Calculation of penalties
Any payments under this clause 23 are in substitution of any other loadings or penalty rates.
…
23.7 Method of calculation
…
(b) Any payments under this clause 23 are in substitution of any other loadings or penalty rates.’
[130] The AWU submits that the content in these two provisions is repeated. We agree with the AWU and it is our provisional view that clause 23.2 be deleted.
(iv) Clause 23.3
[131] Clause 23.3 of the Exposure Draft states:
‘23.3 Shiftwork penalties
(a) A shiftworker or continuous shiftworker must be paid 115% of the ordinary hourly rate for each ordinary hour worked on afternoon shift or night shift.
(b) A shiftworker must be paid 120% of the ordinary hourly rate for each ordinary hour worked on permanent afternoon shift.
(c) A shiftworker or continuous shiftworker must be paid 130% of the ordinary hourly rate for each ordinary hour worked on permanent night shift.’
[132] In relation to 23.3—shiftwork penalties, Ai Group submits that clause 23.3 does not properly characterise the amounts payable under that clause and that the heading of the clause suggests that the clause requires the payment of a penalty whereas the clause prescribes a rate that is payable for such time worked; the amount prescribed is not a penalty that is payable in addition to the base rate of pay. 46 Ai Group submits that the title to clause 23.3 be amended, from ‘Shiftwork penalties’ to ‘Shiftwork penalty rates’.
[133] The AMWU accepts the central premise of Ai Group’s contention but does not agree that any amendment to the clause or the heading is necessary as the substantive content of clause 23.3 leaves the reader in no doubt as to what is required to be paid.
[134] It is our provisional view that the title to clause 23.3 be amended as proposed by Ai Group.
(v) Clauses 18.1(a)(i) and 18.2(b)(i)
Ai Group submit that the purpose and effect of the words “(other than clause 18.1)” in Clause 18.1(a)(i), and “(other than clause 18.2)” in Clause 18.2(b)(i) is unclear and the words should be deleted. The AMWU and AWU agree with Ai Group.
[135] It is our provisional view that the bracketed words in clauses 18.1(a)(i) and 18.2(b)(i) be deleted.
[136] The AMWU agree that the inclusion of the bracketed words are unclear and should be deleted.
[137] We agree and it is our provisional view that the bracketed words be deleted.
(vi) Schedule B3 rates
[138] Ai Group state that it is their understanding that there is a disagreement between the interested parties regarding the proper approach to calculating various rates contained at Schedule B.3 of the exposure draft, including public holiday rates, shiftwork rates and weekend penalty rates. 47 Ai Group submit that by virtue of clause 24.3(b) of the award, casual employees are not entitled to the casual loading where overtime rates, shiftwork penalties, weekend penalties or public holiday penalties are payable. They submit that the award should not be varied to include B.3 until the Full Bench in AM2017/51 has finalised these matters.
[139] The AMWU disputes Ai Group’s construction of the award but is not opposed to the table of rates being inserted after AM2017/51 is finalised. The AMWU also notes that there are no casual overtime rates in clause B.3 and depending on the outcome of the proceedings in AM2017/51 parties should be entitled to request that such rates be included in the tables in B.3.
[140] It is our provisional view that the contested tables not be included in the Exposure Draft or the variation determination until these matters have been finalised in AM2017/51. The parties are asked to identify the tables affected, at the hearing on 11 October 2019.
5.14 Pharmacy Industry Award
[141] The Association of Professional Engineers, Scientists and Managers Australia (APESMA) notes that the decision [2019] FWCFB 3949 and determination PR709577 varying clauses 17 and 19 of the Pharmacy Award contain an operative date of 1 October 2019, and that these variations should also be included in the exposure draft to ensure that it contains all relevant provisions applying at the time it is published.
[142] We agree and it is our provisional view that the Exposure Draft and variation determination be amended to reflect determination PR709577.
5.15 Premixed Concrete Award
[143] Four issues arise in respect of this award.
(i) Definition of ‘ordinary hourly rate’
[144] Clause 2 of the Exposure Draft defines ‘ordinary hourly rate’ as follows:
ordinary hourly rate means the hourly rate for an employee’s classification specified in clause 16—Minimum rates, inclusive of the industry allowance. Where an employee is entitled to an additional all-purpose allowance, this allowance forms part of that employee’s ordinary hourly rate.
[145] Ai Group submit that the definition of ‘ordinary hourly rate’ in clause 2 of the exposure draft be amended to make clear that where an employee is entitled to all-purpose allowances in addition to the industry allowance, they are to be included in the ordinary hourly rate in addition to the industry allowance. Ai Group is concerned that the current definition may be read to suggest that such allowances are to be so included in lieu of the industry allowance. 48
[146] We note that Ai Group raise a similar issue in relation to the Cement, Lime and Quarrying Award and the Mining Award. It would be preferable if there is a consistent outcome across the affected awards.
(ii) Clause 11.3 Casual conversion
[147] Ai Group refer to and rely upon their submissions of 11 July 2017 49 at paragraphs 175-183, and their submissions of 19 January 2018.50 They state that these issues appear to be outstanding and note that in decision [2019] FWCFB 6077 the Full Bench referred to the outstanding drafting of the casual conversion clauses in the 28 modern awards that had such clauses prior to the Review. Ai Group contend that clause 11.3 of the exposure draft is in substantively different terms from the current casual conversion clause in the relevant awards and therefore the draft determination to vary the Premixed Concrete Award should not become operative until these matters are resolved.51
[148] The casual conversion clause in the current award is at clause 10.6 and states:
(a) A casual employee, other than an irregular casual employee, who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of 12 months, thereafter has the right to elect to have their contract of employment converted to full-time or part-time employment if the employment is to continue beyond the conversion process.
(b) Where the employee requests to have their employment converted, the employer will advise the employee in writing, within four weeks of the request, as to whether the employer can consent to the request.
(c) Where such conversion occurs the details will be recorded in writing.
(d) If a casual employee has elected to become and has been converted to a full-time or a part-time employee, the employee may only revert to casual employment by written agreement with the employer.
(e) For the purposes of clause 10.6, an irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis.’
[149] We agree with Ai Group and it is our provisional view that the current casual conversion clause be inserted in the Exposure Draft variation determination pending the resolution of issues associated with the drafting of the term.
(iii) Clause 11.2(a)
[150] Clause 11.2(a) states:
‘11.2 Casual loading
(a) For each ordinary hour worked, a casual employee must be paid:
(i) the ordinary hourly rate for the classification in which they are employed; and
(ii) a loading of 25% of the ordinary hourly rate for the classification in which they are employed.’
[151] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked, a casual employee must be paid…” The word “ordinary” does not appear in clause 10.5(b) of the current award. The wording in the exposure draft may constitute a significant substantive change. The issue is before the Casual Overtime Full Bench and the wording from the current award should be maintained until the issue is resolved in those proceedings.’ 52
(iv) Clause 20.2
[152] Clause 20.2 states:
‘20.2 Overtime rates
Where an employee works overtime the employer must pay to the employee the overtime rates as follows:
For overtime worked on |
Overtime rate |
Casual overtime rate |
Minimum payment |
% of ordinary hourly rate |
|||
Monday to Friday –
|
150% |
175% |
- |
Monday to Friday –
|
200% |
225% |
- |
Saturday – first 2 hours |
150% |
175% |
4 hours |
Saturday – after 2 hours |
200% |
225% |
4 hours |
Sunday all day |
200% |
225% |
4 hours |
[153] The AWU submits:
‘A row for overtime on public holidays should be inserted with 250% and 275% for casual employees and clause 20.2 should then be cross-referenced in clause 27.2. Otherwise, the exposure draft only prescribes a penalty rate for ordinary hours on public holidays in clause 21.1. Clause 27.3 of the current award prescribes a double time and a half rate for all work on public holidays.’ 53
5.16 Salt Industry Award
[154] Five issues arise in respect of the Exposure Draft.
(i) Clause 4.4
[155] Clause 4.4 reads:
‘This award covers employers which provide group training services for apprentices and/or trainees engaged in the industry and/or parts of industry set out at clause 4.1 and those apprentices and/or trainees engaged by a group training service hosted by a company to perform work at a location where the activities described in clause 4.2 are being performed. This subclause Clause 4.4 operates subject to the exclusions from coverage in this award.’
[156] Ai Group submit that consistent with the approach adopted in other exposure drafts, the word ‘salt’ should be inserted before ‘industry’ the first time it appears in the second line at clause 4.4. 54
(ii) Clause 22.2
[157] Clause 22.2 of the Exposure Draft states:
‘22.2 Weekend work
A shiftworker must be paid the following loadings penalty rates for ordinary hours
worked on a Saturday or Sunday:
(a) 150% of the ordinary hourly rate for ordinary hours worked on a Saturday; and
(b) 200% of the ordinary hourly rate for ordinary hours worked on a Sunday.’
[158] Ai Group contend that the ‘shiftwork penalties’ at clause 22.2 are inappropriately characterised. They state that the heading of the clause suggests that the provision requires the payment of a penalty, however the clause prescribes a rate that is payable for such time worked; the amount prescribed in not a penalty that is payable in addition to the base rate of pay. 55 They propose an amendment to the heading to address this issue as follows:
“22.1 Shiftwork penaltyies rates”
[159] It is our provisional view that the heading to clause 22.1 be amended as proposed by Ai Group.
(iii) Clause 11.3(a)
[160] Clause 11.3(a) reads:
‘11.3 Casual loading
(a) For each ordinary hour worked, a casual employee must be paid:
(i) the ordinary hourly rate for their classification; and
(ii) a loading of 25% of the ordinary hourly rate.
(b) The loading constitutes part of the casual employee’s rate of pay for all purposes.
(c) The casual loading is paid instead of annual leave, paid personal/carer’s leave, notice of termination, redundancy benefits and the other conditions of full-time or part-time employment.’
[161] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked, a casual employee must be paid…” The word “ordinary” does not appear in clause 10.3(b) of the current award. The casual loading is paid for all purposes so there should be no dispute about it being paid on overtime.’ 56
(iv) Clause 21.1
[162] Clause 21.1 reads:
‘21.1 Definition of overtime
(a) For a full-time employee (including a shiftworker), overtime is any time worked in excess of an average of 38 hours per week.
(b) For a part-time employee (including a shiftworker), hours worked in excess of the employee’s ordinary hours (determined in accordance with clause 10.3) will be paid at the appropriate overtime rate.
(c) For a casual employee (including a shiftworker), overtime is anytime worked in excess of an average of 38 hours per week.’
[163] The AWU submits:
‘These provisions are misleading because they indicate overtime is only payable when an employee works in excess of their maximum weekly ordinary hours. However, overtime is also payable for hours outside those specified in clause 13-Ordinary hours of work. Reference to “or outside the ordinary hours specified in clause 13-Ordinary hours of work” should be added into clause 21.1(a),(b) and (c).’ 57
(v) Schedule B.1.1
[164] The AWU submits:
‘It isn’t clear whether a day worker can work ordinary hours on a public holiday under this award. The 200% rate appears directed at shiftworkers.’ 58
5.17 Seafood Processing Award
[165] The AWU raises two issues in relation to the Exposure Draft. The first relates to clause 11.2(a), which states:
‘11.2 Casual loading
(a) For each ordinary hour worked, a casual employee must be paid:
(i) the minimum hourly rate; and
(ii) a loading of 25% of the minimum hourly rate,
for the classification in which they are employed.
(b) The loading constitutes part of the casual employee’s all-purpose rate.’
[166] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked, a casual employee must be paid…” The casual loading is paid for all purposes so there should be no dispute about it being paid on overtime.’ 59
[167] The second issue concerns Schedule A.2.4 and A.2.5. The AWU submits that the reference to ‘% of minimum hourly rate’ should be ‘% of casual ordinary hourly rate.’
5.18 Surveying Award
[168] Clause 11.2 of the Exposure Draft states:
‘For each ordinary hour worked, a casual employee will be paid the minimum hourly rate for the work performed. In addition, a casual employee will receive a 25% loading.’
[169] Clause 11.2(b) of the current award states:
‘11.2 Casual employment
…
(b) A casual employee will be paid per hour 1/38th of the weekly rate prescribed in this award for the work performed. In addition, a casual employee will receive a 25% loading instead of annual leave, personal/carer’s leave, bereavement leave and public holidays.’
[170] The AMWU submits that the change in the language between clause 11.2 of the exposure draft and clause 11.2(b) of the current award may constitute a substantive change. AMWU acknowledges that the drafting of clause 11.2 has been the same as previous iterations of the exposure draft, however has just identified this issue in this round of publication. It proposes the following amendment to clause 11.2 of the exposure draft:
“For each ordinary hour worked, a casual employee will be paid the minimum hourly rate for the work being performed. In addition, a casual employee will receive a 25% loading.” 60
[171] Further, the AMWU acknowledge the wording of clause 11.2 (and others) may be affected by the proceedings in ‘AM2017/51 Overtime for Casuals’, however submit that notwithstanding this, the current wording in the exposure draft should reflect the existing drafting in the award pending any changes that may arise out of the common issue proceedings. 61
5.19 Silviculture Award
[172] The AWU raises two issues in relation to this Exposure Draft. The first concerns clause 15.1, which states:
‘15.1 Minimum rates
15.1 Employees are entitled to the following minimum wages for the classification in which they are employed:
Classification |
Minimum weekly
|
Minimum hourly
|
Ordinary weekly rate |
Silviculture and afforestation worker grade 1 |
792.80 |
20.86 |
859.40 |
Silviculture and afforestation worker grade 2 |
823.80 |
21.68 |
891.40 |
Silviculture and afforestation worker grade 3 |
838.80 |
22.07 |
906.80 |
Silviculture and afforestation worker grade 4 |
859.20 |
22.61 |
927.90 |
Silviculture and afforestation worker grade 5 |
875.00 |
23.03 |
944.20 |
Silviculture and afforestation worker grade 6 |
882.30 |
23.22 |
951.70 |
[173] The AWU submits that the inclusion of an ‘Ordinary weekly rate’ column ‘appears inconsistent with other exposure drafts.’
[174] The second issue concerns clause 20.12(a), which states:
‘20.12 Sundays and public holidays
…
(a) Subject to this clause 20.12, the provisions of clause 27—Public holidays will apply to shiftworkers.’
[175] The AWU submits that ‘it appears the public holiday rate of 250% of the ordinary hourly rate should be inserted here or the references are circular.’ 62
5.20 Water Industry Award
[176] An issue has been raised regarding the ‘notes’ appearing under clauses 15.4 and 18.3(c).
[177] The note under the heading to clause 15.4 states:
‘Clause 15.4 referred to substantive Full Bench in AM2019/6, see [2018] FWCFB 4175 at [427].’
[178] In relation to the note under the heading in clauses 15.4—Higher duties, and 18.3(c)—Transfers, travelling and working away from normal starting point, Ai Group submit that there are no substantive matters before the Commission. It refers to correspondence from United Voice withdrawing its claim. 63
[179] We agree with Ai Group and it is our provisional view that the note be deleted.
5.21 Wool Storage, Sampling and Testing Award
[180] Four issues arise in relation to the Exposure Draft.
(i) Clause 11.3(a)
[181] Clause 11.3(a) reads:
‘11.3 Casual loading
(a) For each ordinary hour worked, a casual employee must be paid:
(i) the minimum hourly rate in clause 16.1; and
(ii) a loading of 25% of the minimum hourly rate.’
[182] The AWU submits:
‘This should be amended to read: “For each ordinary hour worked, a casual employee must be paid…” The word “ordinary” does not appear in clause 10.3(b) of the current award. The wording in the exposure draft may constitute a significant substantive change. The issue is before the Casual Overtime Full Bench and the wording from the current award should be maintained until the issue is resolved in those proceedings.’ 64
(ii) Clause 22.2
[183] Clause 22.2 of the Exposure Draft states:
‘22.2 Shiftwork penalties
(a) A shiftworker or continuous shiftworker whilst on afternoon shift or night shift must be paid 115% of the minimum hourly rate.
(b) A shiftworker or continuous shiftworker whilst on permanent night shift must be paid 130% of the minimum hourly rate.’
[184] Ai Group is concerned that the shiftwork penalties in clause 22.2 are inappropriately classified. They submit that the clause purportedly requires the payment of a penalty. The clause however prescribes a rate that is payable for such time worked; the amount prescribed is not a penalty that is payable in addition to the base rate of pay. 65 Ai Group propose that the heading of the clause be changed to ‘Shiftwork penalty rates’. It is our provisional view that the title to clause 22.2 be amended as proposed by Ai Group.
(iii) Schedule B.1
[185] The AWU submits:
‘The rates tables do not appear correct. The tables indicate day workers can work ordinary hours on the weekend and shiftworkers cannot – whereas the opposite is correct. The weekend and public holiday penalty rates should be moved from the day work table to the shiftwork tables for permanent and casual employees.’ 66
(iv) Schedule C.1.1
[186] Ai Group lastly note that the standard rate prescribed in Schedule C.1.1 has not been updated to reflect the outcome of the Annual Wage Review decision 2019-2020. They also note that the allowances in the table at C.1.1 are incorrect. 67 It is our provisional view that the standard rate in Schedule C.1.1 and the allowances in the table at C.1.1 be corrected as proposed by Ai Group.
6. The 11 October 2019 Hearing
[187] The hearing will commence at 10:00am and the schedule is as follows:
Minor Errors
[188] A number of minor errors have been identified in the exposure drafts set out at [28] above. Any party who contests the variation of these exposure drafts to address the errors identified will be invited to make a submission. Absent any opposition we will amend the exposure drafts as set out in the footnotes to [28] above.
Provisional views
(i) General issues
[189] Parties will be invited to make submissions in respect of the general issues dealt with at [9] – [28] above, as follows:
• 3.1 Operative date
• 3.2 Overtime for casuals
• 3.3 Reference to National Training Wage
• 3.4 The ‘note’ in schedule of Rates
(ii) Award specific issues
[190] A range of provisional views in respect of individual exposure drafts are set out earlier, as follows:
• Aluminium Award (at [34], [39], [43] and [47])
• Animal Care and Veterinary Services Award (at [57 and [61]])
• Banking, Finance and Insurance Award (at [73])
• Cement, Lime and Quarrying Award (at [81] and [83])
• Cotton Ginning Award (at [100])
• Oil Refining and Manufacturing Award (at [128], [130], [134], [135], [137] and [140])
• Pharmacy Industry Award (at [142])
• Premixed Concrete Award (at [149])
• Salt Industry Award (at [159])
• Water Industry Award (at [179])
• Wool Storage, Sampling and Testing Award (at [184] and [186])
[191] Any party who wishes to contest any of these provisional views will be invited to make a submission. Absent any opposition we will adopt these provisional views and amend the relevant exposure drafts and variation determinations accordingly.
Awards with no contested issues
[192] At [7] above we identify a number of modern awards in respect of which no remaining technical and drafting issues are identified in the submissions. Further, if our provisional views are accepted there are also no remaining technical and drafting issues in respect of the following awards:
• Animal Care and Veterinary Services Award 2010
• Pharmacy Industry Award 2010
• Water Industry Award 2010
[193] Any party contending that there are outstanding technical and drafting issues in respect of any of these awards will be invited to make a submission, identifying the exposure draft and the issue.
[194] If no submissions are made in respect of these awards at the 11 October 2019 hearing we will confirm our provisional views (see [4] above) and the variation determinations in respect of each of these awards in the terms published on 2 September 2019, subject to our determination of the general issues raised in Section 3.
Outstanding contested issues.
[195] The remaining outstanding contested issues will be the subject of oral submissions as set out below.
• Ambulance and Patient Transport Industry Award
• Aquaculture Industry Award
• Banking, Finance and Insurance Award
• Cement, Lime and Quarrying Award
• Cemetery Industry Award
• Cotton Ginning Award
• Funeral Industry Award
• Hydrocarbons Industry (Upstream) Award
• Mining Industry Award
• Nursery Award
• Oil Refining and Manufacturing Award
• Premixed Concrete Award
• Salt Industry Award
• Surveying Award
• Seafood Processing Award
• Silviculture Award
• Wool Storage, Sampling and Testing Award
PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR713061>
2 The Business Equipment Award 2010, Graphic Arts, Printing and Publishing Award 2010 and Telecommunications Services Award 2010 were initially included in tranche 1 but have been moved to tranche 3 in accordance with a request from the Australian Industry Group (Ai Group); see [2019] FWCFB 6562)
3 As amended by [2019] FWCFB 6562
4 AMWU reply submission 8 October 2019 at [18]
5 AWU submission 9 October 2019 at para 9: cross reference error in clause 20.1(a)(i); para 11 cross references error in clause 27.3.
6 Ai Group submission, 20 September 2019 at para 11, the word ‘the’ should be inserted before ‘work’ in clause 2 at para 15 the reference to clause 17 in clause 7.2 should be to clause 17.1; para 18 the reference to ‘shift penalties’ in clause 20.3(b) should be changed to ‘shift loadings’; para 22 note 1 in clause 22.7 should be amended to refer to ‘clause 22.7(d)’ instead of ‘clause 22.7(b). AWU submission on 9 October 2019 para 5: formatting issue at the end of clause 17.5(a); para 7: missing full stop in clause 22.5(a).
7 United Voice submission, 20 September 2019 at para 6, regarding typographical error at clause 16.1(b)
8 Ai Group submission, 20 September 2019 at para 25, the reference to clause 16 in clause 7.2 should be to clause 16.1, at para 29 the word ‘rates’ should be inserted after ‘minimum’ in clause 17.1(a)(i), at para 30 the cross reference in clause 27.2 should be to clause 27.4, not clause 27.2
9 Ai Group submission, 20 September 2019 at para 34 regarding cross referencing error in clause 4.1; at para 35: Term ‘industry’ to be amended to ‘industries’ in clause 4.5; para 36, the reference to clause 17 in clause 7.2 should be to clause 17.1(b). See also ABI and NSW BC submission, 27 September 2019 at para 11 regarding typographical error in clause 14.5
10 Ai Group submission, 20 September 2019 at para 43 regarding typographical errors in clause 2, para 50, the reference to clause 18 in clause 7.2 should be to clause 18.1
11 Ai Group submission 20 September 2019, para 58 delete the subheadings ‘penalty rates’ in clause 20.1
12 Ai Group submission, at paras 81, 82 and 83 regarding cross reference errors in clauses 4.4 and 7.2; para 83 the words ’13. Ordinary hours of work’ in clause 9 should be deleted; para 86 replace ‘Minimum rates’ with ‘Overtime’ in clause 15.6; para 88: the semi colon at the end of clause 22.2 should be replaced with a full stop.
13 ABI and NSW BC submission, 27 September 2019 at paras 21-22 regarding cross referencing error in clause 17.4(a)
14 Ai Group submission, 20 September 2019 at para 91, the reference to (b) before 4.2 should be deleted; para 92, the word ‘salt’ should be inserted before the word ‘industry’ the first time it appears in the second line; para 96 the reference to ‘clause 23.6’ in clause 23.5 should be deleted and replaced with a reference to ‘clause 23.3’
15 AWU submission 9 October 2019 at para 36: the cross reference in clauses 20.6 and 20.7(f) should be to clause 20.5.
16 AWU submission 9 October 2019 at para 38: in clause 13.2 the reference to clause 8.3 should be to clause 13.3.
17 AMWU submission, 30 September 2019 at para 20, regarding “4.2” not being deleted in clause 4.5. See also Ai Group submission, 20 September 2019 at para 102 regarding the same issue. Ai Group submission, 20 September 2019, at para 105 the reference to ‘clause 17.4’ should be to ‘clause 17’; at paras 107 and 109 regarding cross referencing issue in clause 21.5 and C.1.1 reference to 18.3(c)(iv)
18 Ai Group submission, 20 September 2019 at para 111, the cross reference to clause 29 in clause 14.1(b)(v) should be replaced with a reference to ‘clause 30 – Consultation about changes to rosters or hours of work’; at para 113 regarding cross referencing error in clause 18.5
19 RACV Road Service Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union [2015] FWCFB
8554.
20 AWU submission 9 October 2019, at [6]
21 United Voice submission, 20 September 2019 at para 7
22 United Voice submission, 20 September 2019 at para 10
23 United Voice submission, 20 September 2019 at para 13
24 AWU submission 9 October 2019, at [10]
25 AWU submission 9 October 2019, at [11]
26 Ai Group submission, 20 September 2019 at para 26
27 Ai Group submission, 20 September 2019 at para 33
28 Ai Group submission, 11 July 2017
29 Ai Group submission, 19 January 2018
30 Ai Group submission, 20 September 2019 at paras 37-38
31 ABI and NSW BC submission, 27 September 2019 at paras 18-20
32 AWU submission, 9 October 2019, at [13]
33 Ai Group submission, 20 September 2019 at para 44
34 Ai Group submission, 20 September 2019 at para 45
35 Ai Group submission 20 September 2019 at [46]
36 Ai Group submission, 11 July 2017 at paras 152-168; Ai Group submission, 19 January 2018
37 Ai Group submission, 20 September 2019 at para 52
38 Ai Group submission, 20 September 2019 at para 55
39 AWU submission, 9 October 2019, at [21]
40 AWU submission, 9 October 2019, at [22]
41 Ai Group submission, 20 September 2019 at para 64
42 Ai Group submission, 20 September 2019 at para 65
43 AWU submission, 9 October 2019, at [25]
44 AMWU submission, 30 September 2019 at paras 9-12
45 Ai Group submission, 20 September 2019 at para 77
46 Ai Group submission, 20 September 2019 at para 72
47 Ai Group submission, 20 September 2019 at para 74
48 Ai Group submission, 20 September 2019 at para 80
49 Ai Group submission, 11 July 2017
50 Ai Group submission, 19 January 2018
51 Ai Group submission, 20 September 2019 at paras 84-85
52 AAWU submission, 9 October 2019, at [28]
53 AWU submission, 9 October 2019, at [29]
54 Ai Group submission, 20 September 2019 at para 92
55 Ai Group submission, 20 September 2019 at paras 94-95
56 AWU submission, 9 October 2019, at [32]
57 AWU submission, 9 October 2019, at [33]
58 AWU submission, 9 October 2019, at [34]
59 AWU submission, 9 October 2019, at [35]
60 AMWU submission, 30 September 2019 at paras 14-19. Reference has been made to 24% loading, not 25% loading.
61 AMWU submission, 30 September 2019 at para 20
62 AWU submission, 9 October 2019, at [40]
63 Ai Group submission, 20 September 2019 at paras 103 and 106
64 AWU submission, 9 October 2019, at [41]
65 Ai Group submission, 20 September 2019 at para 26
66 AWU submission, 9 October 2019, at [42]
67 Ai Group submission, 20 September 2019 at paras 121-122