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

4 yearly review of modern awards – Registered and Licensed Clubs Award 2010
(AM2014/283)

4 yearly review of modern awards – Registered and Licensed Clubs Award 2010 – award stage

[1] Further to the hearing before the AM2019/17 Finalisation of Exposure Drafts Full Bench on 9 October 2019 a conference of the parties with an interest in the Registered and Licensed Clubs Award 2010 (Clubs Award) was held before Commissioner Bissett on 16 October 2019. The conference was in relation to the matters raised by United Voice and Clubs Australia Industrial (CAI) in their submissions following the release of the exposure draft for the Clubs Award in early 2019.

[2] A report of the outcomes of that conference and proposed variations to the Clubs Award exposure draft is at Attachment A. One issue remains unresolved.

[3] The unresolved issue concerns clause 18.4(a) – Casual fitness instructor and whether the rate, currently inclusive of the 25% casual loading, should be disaggregated (see [17] of the attached report).

[4] In a Statement 1 published on 23 October 2019 interested parties were invited to file submissions on the unresolved issue by no later than 4:00 pm on Wednesday 13 November 2019. Submissions in reply were to be filed by no later than 4:00 pm on Wednesday 27 November 2019. The Statement also noted that the issue would be determined on the papers unless a request for an oral hearing was filed by 4:00 pm on Friday 29 November 2019.

[5] No party has requested an oral hearing.

[6] Clause 18.4 provides as follows:

18.4 Casual fitness instructors

(a) Minimum hourly rate—$47.72 inclusive of the 25% casual loading in clause 11.2.

(b) Minimum engagement—one hour.

[7] United Voice submits that the rate in clause 18.4 is only inclusive of the 25% casual loading and does not include an amount in respect of penalty rates:

‘Clause 29.1 of the current Award provides for weekend and public holiday penalty rates for employees other than maintenance and horticultural employees and clause 29.4 provides for late and early work penalties for employees other than maintenance and horticultural employees.2 Casual fitness instructors are not excluded from these provisions and therefore are entitled to penalty rates.

The minimum hourly rate of a casual fitness instructor should be disaggregated from the casual loading and stated within the Award. This would make it easier for employees and employers to calculate penalty rates for casual fitness instructors.’ 2

[8] CAI contends that the rate in clause 18.4 is ‘an all inclusive rate’ and submits that in Matter No. 2010/221 Vice President Watson ‘confirmed the position that the rate encompasses all allowances’. 3 CAI also submits that ‘to remove ambiguity’ the clause should be reworded as follows:

‘(a) Minimum hourly rate - $47.72 inclusive of the 25% casual loading in clause 11.2. No penalty or weekend payments of any type will apply.’ (emphasis added)

[9] It is submitted that the addition of the last sentence is consistent with the Club Employees (State) Award.

[10] We note at the outset that, contrary to CAI’s assertion, Vice President Watson did not confirm that the rate encompasses all allowances, so much is clear from the transcript of those proceedings:

‘MS MANOHAR-MURRAY: I might move on to the second variation that’s being sought, your Honour.

THE VICE PRESIDENT: Yes.

MS MANOHAR-MURRAY: That’s to insert a note at the end of sub-clause 17.6. That’s in relation to casual fitness instructors. The note would read:

The hourly rate specified in this sub-clause is inclusive of the 25 per cent casual loading specified in sub-clause 10.5.

This is because it has always been the case historically, however Fair Work Australia has advised that the 25 per cent casual loading would be on top of that rate of pay. So we would just like to have that clarified as well.

THE VICE PRESIDENT: Yes, you say it’s clearly the intention that it be an all-up figure.

MS MANOHAR-MURRAY: That’s right, your Honour.

THE VICE PRESIDENT: Encompassing all allowances, at least encompassing the casual allowance.

MS MANOHAR-MURRAY: Yes, your Honour.

THE VICE PRESIDENT: Yes.’  4 (Emphasis added)

[11] As a general proposition we accept that the rate should be disaggregated or, at the very least, clause 18.4 should clearly identify the constituent elements of the rate. A disaggregated rate is transparent and provides a means of ensuring that the minimum classification rate is properly fixed.

[12] The disaggregated rates for a casual fitness instructor are as set out below:

Classification rate		Minimum hourly rate	Minimum weekly rate
Weekly	Hourly	(RATES INCLUSIVE OF 25% CASUAL LOADING)
$1450.70	$38.18	$47.72	$1813.36

[13] As mentioned earlier, United Voice contends that the ‘loaded’ rate in clause 18.4 only includes the 25% casual loading and does not include any penalty rates. This proposition seems inherently unlikely. If the rate for a casual fitness instructor is disaggregated the minimum classification rate is $38.18 per hour or $1450.70 per week. This rate seems far too high in the context of the other minimum classification rates in this award. For example, a leisure attendant grade 2 is defined in clause A.7.2 to mean:

A.7.2 Leisure attendant grade 2 means a person who has the appropriate level of training and takes classes and/or directs leisure activities such as sporting areas, health clubs and swimming pools. This classification includes an assistant bingo caller.

[14] A leisure attendant grade 2 is a Level 3 employee and receives a minimum hourly rate of $20.91 ($794.70 per week).

[15] Further, there are 13 levels in the classification structure in the award:

	Minimum weekly rate $	Minimum hourly rate $
Introductory	719.20	18.93
Level 1	739.90	19.47
Level 2	768.30	20.22
Level 3	794.70	20.91
Level 4	837.40	22.04
Level 5	889.90	23.42
Level 6	913.70	24.04
Level 7	936.70	24.65
Level 8	976.30	25.69
Level 9	989.30	26.03
Level 10	1025.60	26.99
Level 11	1063.00	27.97
Level 12	1130.30	29.74
Level 13	1152.40	30.33

[16] If United Voice’s submission was accepted then casual fitness instructors would have the highest minimum classification rate in the award (before applying the 25% casual loading). Indeed, such an employee would be paid in excess of a Level G manager – the highest classification in the award. Such a proposition seems absurd. A comparison with the fitness Industry Award 2010 confirms this view.

[17] The Fitness Industry Award 2010 contains a nine level classification structure (see clause 17.1), as follows:

17.1 Adults

The minimum wages for an adult employee are as follows:

Classification level	Minimum weekly wage	Minimum hourly wage
	$	$
Level 1	740.80	19.49
Level 2	762.10	20.06
Level 3	818.50	21.54
Level 3A	862.50	22.70
Level 4	898.00	23.63
Level 4A	941.10	24.77
Level 5	991.90	26.10
Level 6	983.30	25.88
Level 7	1021.60	26.88

[18] An employee at level 3A holds a Fitness Industry AQF Certificate Level III qualification and works under general supervision and a Level 5 employee holds a Fitness Industry AQF Diploma level qualification or equivalent.

[19] Clause 13.2 and 13.3 of the Fitness Industry Award 2010 may also be relevant, they state:

13.2 A casual employee for working ordinary hours on Monday to Friday must be paid per hour at the rate of 1/38th of the minimum weekly rate prescribed in clause 17—Minimum wages for the work being performed plus a casual loading of 25%.

13.3 A casual employee for working ordinary hours on a Saturday, Sunday or public holiday must be paid per hour at the rate of 1/38th of the minimum weekly rate prescribed in clause 17—Minimum wages for the work being performed plus a casual loading of 30%.

[20] It seems to us that the disaggregation of the rate in clause 18.4(a) invites scrutiny of the disaggregated minimum classification rate for a fitness instructor. In particular, whether that rate is properly fixed. We would also observe that on the limited material presently before us we are not persuaded that the rate in clause 18.4 encompasses all penalty payments.

Next steps

[21] A revised exposure draft will be published in January 2020, reflecting the agreed outcomes of the conference before Commissioner Bissett.

[22] In relation to the clause 18.4 issue:

1. United Workers’ Union is to file a submission regarding the appropriate minimum classification rate for casual fitness instructors.

2. CAI is to file a submission setting out precisely which penalty payments the clause 18.4 ‘loaded’ rate is said to encompass and detailing the relevant arbitral history of clause 18.4.

3. The submissions are to be filed by 4pm on Friday 31 January 2020.

4. Submissions in reply are to be filed by 4pm on Friday 14 February 2020.

5. All submissions are to be sent to [email protected].

[23] Absent a request for an oral hearing we will decide the clause 18.4 issue on the papers.

PRESIDENT

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ATTACHMENT A

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

4 Yearly Review of Modern Awards: Registered and Licensed Clubs Award 2010—Report to the Full Bench
(AM2019/17)

4 yearly review of modern awards: Registered and Licensed Clubs Award 2010 - Report to the Full Bench.

Registered and Licensed Clubs Award Exposure Draft

[24] Further to the hearing before the Full Bench on 9 October 2019 a conference of the parties attending in relation to the Registered and Licensed Clubs Award 2010 (Clubs Award) was held before me on 16 October 2019. The conference was in relation to the matters raised by United Voice and Clubs Australia Industrial (CAI) in their submissions made following the release of the exposure draft for Clubs Award in February and March 2019.

[25] Following is a report of the outcomes of that conference and proposed variations to the Clubs Award exposure draft.

1. Clause 13.1 – Junior employees

[26] United Voice and CAI agree that only junior employees actually engaged in serving liquor are entitled to be paid at the adult rate.

[27] Clause 13.1 of the exposure draft will be amended to reflect the wording in clause 15.1 of the Restaurant Industry Award 2010 which deals with the same subject matter.

[28] Clause 13.1 of the exposure draft will therefore be amended to read:

13.1 Junior employees will be paid in accordance with clause 18.7. Where the law permits, junior employees may be employed in the bar or other places where liquor is sold. Junior employees working as liquor service employees must be paid at the adult rate of pay in clause 18.3 for the classification for the work being performed.

2. Clause 18.2 – Minimum wages

[29] The parties have agreed to an amendment to clause 18.2 in the exposure draft to add the word “ordinary” before “rate of pay” so that the clause reads:

18.2 An employee’s ordinary rate of pay is inclusive of the award rate set out in this clause and the additional allowance (where applicable) for first aid set out in clause 19.2(b).

3. Clause 18.4(a) – Casual fitness instructor

[30] Clause 18.4 of the exposure draft reads as follows:

18.4 Casual fitness instructor

(a) Minimum hourly rate - $49.15 5 inclusive of the 25% casual loading in clause 11.2.

(b) Minimum engagement – one hour.

[31] United Voice submit that the rate of $49.15 in the clause does not include an amount in respect of penalty rates. It says that clause 24.1 in the exposure draft provides that an employee (other than a maintenance and horticultural employee) performing work on specified days is entitled to the percentage of the ordinary hourly rate specified. Clause 24.1 does not exclude casual fitness instructors from the provision and it therefore applies to them.

[32] United Voice suggest that the rate at clause 18.4(a) should be disaggregated (into the ordinary hourly rate and 25% loading) to enable easier calculation of the penalty rate payable under clause 24.1.

[33] CAI submits that the minimum hourly rate is an all inclusive rate such that no penalty or weekend payments apply and seeks to have this reflected in the clause. CAI rely on transcript in AM2010/221 where Vice President Watson dealt with the issues under the Clubs Award (at PN61).

[34] Following the conference the CAI has provided a further considered response to the question of whether the disaggregated rate should be included in the exposure draft and argued, based on a history of the Clubs Award and on considering the equivalent provision in the Fitness Industry Award 2010 that words be added to the clause to indicate the rate is inclusive of allowances, penalties and loadings. Alternatively, CAI accepts that this may be a matter which requires more fulsome submissions or separate proceedings may be appropriate.

[35] In response to these submissions United Voice says that the “claim” of CAI is a new claim and, while argued by CAI, there is no basis on which to consider that the Clubs Award should replicate what was in the Club Employees (State) Award 2004. United Voice further says that it is clear that casual fitness instructors fall within the ambit of the penalty rates contained in clause 29 of the Clubs Award [clause 24 of the exposure draft].

[36] The question of whether the rate, currently inclusive of the 25% casual loading, should be disaggregated remains unresolved.

4. Clause 19.3(c) – Clothing, equipment and tools

[37] United Voice and CAI agree that clause 19.3(c)(i) deals with two distinct issues – first an allowance for a cook for the use of his or her own tools and second, a requirement to reimburse a maintenance or horticultural employee who is required to supply their own tools for the cost of the tools. The allowance for tool use is not of the same character as the reimbursement of the cost of purchase of tools.

[38] Clause 19.3(c)(ix) provides for the reimbursement to employees for the cost of purchase of towels, tools, ropes, brushes, knives, choppers, implements, utensils and materials except where those items are provided by the employer.

[39] It was agreed that the reimbursement to maintenance and horticultural employees referenced in clause 19.3(c)(i) more properly belongs elsewhere in clause 19.3(c). To avoid doubt, it is proposed to delete the words “Where a maintenance and horticultural employee is required to supply and use their own tools, the employer will reimburse the cost of such tools” where they appear in clause 19.3(c)(i) and insert a new clause 19.3(c)(x) be added as follows:

(x) Where a maintenance and horticultural employee is required to supply and use their own tools, the employer will reimburse the cost of such tools

5. Clause 24.4 – Late and early work penalty

[40] The clause provides that a penalty is payable for late or early work as follows:

(a)  Monday to Friday, 7.00 pm to midnight: $2.20 per hour or any part of an hour for such time worked within the said hours; and

(b)  Monday to Friday, midnight to 7.00 am: $3.31 per hour or any part of an hour for such time worked within the said hours.

[41] CAI and United Voice agree that the penalty operate on a pro-rata basis where work is performed for part of an hour. To remove uncertainty the clause will be amended to read:

24.4 Late and early work penalty

(a) Employees other than maintenance or horticultural employees will be entitled to the following additional penalty for work performed at the following times:

(i) Monday to Friday, 7.00 pm to midnight: $2.27 per hour for such time worked; and

(ii) Monday to Friday, midnight to 7.00 am: $3.41 per hour for such time worked.

(b) The amount payable will be paid on a pro-rata basis for a part hour.

COMMISSIONER

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 1   [2019] FWC 7328

 2   United Voice submission 10 May 2019 at [15]—[16]

 3   CAI submission 17 May 2019 at [11]–[13]

 4   Transcript 11 October 2010 at PN54 – PN63

 5   Post July 2019 rate.