DECISION

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

4 yearly review of modern awards
(AM2019/17)

4 yearly review of modern awards — finalisation of exposure drafts and variation determinations—outstanding Tranche 3 awards.

1. Background

[1] This Full Bench has been constituted to oversee the process for finalising the exposure drafts produced during the 4 yearly review of modern awards (the Review) and the consequent variation of each modern award. For that purpose, the modern awards were divided into 3 Tranches. In a decision published on 2 September 2019, 1 we outlined the process for finalising the exposure drafts and consequent variations of each award.

[2] On 29 January 2020 we issued a decision 2 expressing the provisional view that the variation of Tranche 3 modern awards, in accordance with the respective draft variation determinations was necessary to achieve the modern awards objective. On the same day exposure drafts and draft variation determinations were published for each of the Tranche 3 awards. Interested parties were invited to comment on our provisional view and the Tranche 3 exposure drafts and draft variation determinations.

[3] There are 38 Tranche 3 awards (see Attachment A).

[4] On 23 March 2020 we published a Statement 3 (the March 2020 Statement) and a Background Paper (the Tranche 3 BP) which summarised the submissions filed in respect of the modern awards in Tranche 34 and also:

•  set out some minor drafting errors and omissions in the exposure drafts and draft variation determinations, which we proposed to correct;

•  set out some provisional views in response to submissions put: and

•  invited interested parties to comment on certain submissions.

[5] In a further decision 5 issued on 27 April 2020 (the April 2020 decision), we set out the next steps for dealing with the Tranche 3 awards, following the receipt of submissions and reply submissions by interested parties. The April 2020 Decision divided the Tranche 3 awards into five categories.

[6] The 17 awards in category 1 6 were uncontentious or had given rise to a limited number of issues which have now been resolved. In the April 2020 Decision we confirmed the provisional views expressed in the January 2020 Decision and decided to issue variation determinations in respect of each of these 17 awards in the terms published on 29 January 2020 subject to the amendments necessary:

•  to give effect of this decision;

•  to incorporate the variations flowing from various Full Bench decisions;

•  the correction of minor typographical errors and omissions; and

•  any variations necessary to give effect to any subsequent Full Bench decisions.

[7] These variation determinations were published on 30 April 2020 and commenced operation on 18 June 2020. We need say no more about the category 1 awards.

[8] This decision deals with the Category 2 and 3 awards in Tranche 3. In the ‘Next Steps’ section of this decision we address the awards in categories 4 and 5.

2. Category 2 and 3 Awards – general issues

[9] There are six awards in category 2 and nine awards in category 3. There are a number of general issues which affect the awards in each category.

2.1 Awards varied to insert Schedule X

[10] On 8 April 2020, the Commission issued a Decision 7 on its own initiative, varying 99 modern awards to insert a new schedule: Schedule X—Additional measures during the COVID-19 pandemic. Schedule X provides an entitlement to unpaid ‘pandemic leave’ and the flexibility to take twice as much annual leave at half pay. Schedule X was to operate until 30 June 2020.

[11] The operation of Schedule X has been extended in 81 awards since the April 2020 decision. This includes a number of Tranche 3, category 2 and 3 awards.

[12] On 16 September 2020, a Statement 8 was issued by a Full Bench of the Commission in AM2020/93 outlining the provisional view that the operation of Schedule X should be extended until 29 March 2021, which is the same period that the JobKeeper Scheme extends to. A supplementary Statement was issued on 18 September 20209 extending the provisional view to a further 3 modern awards.

[13] In a decision issued on 24 September 2020 10 the Full Bench confirmed their provisional view and extended the operation of Schedule X in 74 awards until 29 March 2021.

[14] The relevant Category 2 and 3 awards which contain Schedule X have been updated in line with the decision of the Full Bench in AM2020/93.

2.2 Annual Wage Review 2019-20

[15] The Annual Wage Review 2019-20 (AWR 2019-20) Decision 11 was issued on 19 June 2020. The COVID-19 pandemic affected how the Expert Panel dealt with the AWR 2019-20. The majority of the Expert Panel observed that the COVID-19 pandemic ‘casts a large shadow over the current economic environment’12 and decided it was appropriate to increase the National Minimum Wage and to adjust modern award minimum wages by 1.75 per cent.

[16] With respect to the timing of the adjustments, the majority found that the impact of the COVID-19 pandemic has not been consistent across all sectors of the economy and as a result categorised modern awards into three groups, as set out at [466] of the AWR 19-20 Decision. The Expert Panel determined different operative dates for the determinations varying modern award minimum wages for each group, as follows: 13

[17] The majority set out the reasons for the operative dates at [162]-[164] of their decision as follows:

‘[162] The modern awards in Group 1 cover industries which have been less affected by the pandemic than those covered in Groups 2 and 3, and includes modern awards applying to ‘frontline’ health workers, teachers and childcare workers and employees engaged in other essential services, who have continued working throughout the pandemic, to keep the community safe; to protect the vulnerable and those at risk; and to keep the economy functioning. The variation determinations in respect of these awards will come into operation on 1 July 2020. We estimate that about 25 per cent of non-managerial award-reliant employees are covered by the modern awards in Group 1.

[163] The modern awards in Group 2 cover industry sectors adversely impacted by the pandemic, but not to the same extent as the sectors covered by the Group 3 awards. These are the awards in the central cluster. We are satisfied that there are exceptional circumstances justifying the variation determinations in respect of these modern awards coming into operation on 1 November 2020. We estimate that about 40 per cent of non-managerial award-reliant employees are covered by the modern awards in Group 2.

[164] The modern awards in Group 3 cover the industry sectors which have been most adversely affected by the pandemic. These are the modern awards that mostly apply to employers and employees that operate within industries located in the upper cluster. We are satisfied that there are exceptional circumstances justifying the variation determinations in respect of these modern awards coming into operation on 1 February 2021. We estimate that just over one third of non-managerial award-reliant employees are covered by the modern awards in Group 3.’

[18] One of the awards in Category 2 of Tranche 3, the Funeral Industry Award 2010 (Funeral Award) is categorised as an AWR Group 1 Award for the purpose of the AWR 2019-20. The minimum wage adjustment for Group 1 Awards was operative from 1 July 2020.  14 The final variation determination for the Funeral Award has been updated in line with these adjustments.

[19] There are eight Category 2 and 3 awards that fall within AWR Group 2 for the purposes of the AWR 2019-20 updates; these awards are:

•  Food, Beverage and Tobacco Manufacturing Award 2010 (Food Manufacturing Award)

•  Graphic Arts, Printing and Publishing Award 2010 (Graphic Arts Award)

•  Broadcasting, Recorded Entertainment and Cinemas Award 2010 (Broadcasting Award)

•  Electrical, Electronic and Communications Contracting Award 2010 (Electrical Contracting Award)

•  Horticulture Award 2010 (Horticulture Award)

•  Telecommunications Services Award 2010 (Telecommunications Award)

•  Textile, Clothing, Footwear and Associated Industries Award 2010 (Textile Award)

•  Timber Industry Award 2010 (Timber Award)

[20] The minimum wages in these awards will be increased by 1.75 per cent from the start of the first full pay period on or after 1 November 2020. Therefore, the rates that will be published with the final variation determinations in line with this decision will be the rates that commence operation from 1 November 2020. Expense related allowances in these awards will be updated in early November following the finalisation of the relevant expense related determinations. For further information regarding this process please see the Information Note–Method for adjusting expense-related allowances for the Annual Wage Review 2019-20.

[21] There are six Category 2 and 3 awards that fall within AWR Group 3, namely:

•  Fitness Industry Award 2010 (Fitness Award)

•  General Retail Industry Award 2010 (General Retail Award)

•  Live Performance Award 2010 (Live Performance Award)

•  Racing Clubs Events Award 2010 (Racing Clubs Award)

•  Registered and Licensed Clubs Award 2010 (Registered Clubs Award)

•  Wine Industry Award 2010 (Wine Industry Award)

[22] The minimum wages in these awards will be increased by 1.75 per cent from the start of the first full pay period on or after 1 February 2021.

2.3 Correcting minor errors

[23] A number of minor errors have been corrected during the finalisation process for the following Exposure Drafts:

•  Broadcasting Award 15

•  Electrical Contracting Award 16

•  Fitness Award 17

•  Food Manufacturing Award 18

•  Funeral Award 19

•  Graphic Arts Award 20

•  Horticulture Award 21

•  Live Performance Award 22

•  Racing Clubs Events Award 23

•  Timber Award 24

•  Wine Industry Award 25

[24] We now turn to deal with the award specific issues in the category 2 awards.

3. Category 2: Award specific issues

[25] The awards in this category are:

•  Fitness Award

•  Funeral Award

•  General Retail Award

•  Live Performance Award

•  Racing Clubs Award

•  Registered Clubs Award

[26] Revised exposure drafts and draft variation determinations in respect of the Category 2 awards were published on 30 April 2020 and interested parties were provided with 14 days to comment.

Funeral Industry Award 2010

[27] In the April 2020 decision we dealt with an issue relating to the correct rates for afternoon shiftworkers working overtime. 26 We noted that the matter had been finalised, and that the rates tables appearing at A.1.4 and A.1.5 would be updated in accordance with our decision. Interested parties were provided an opportunity to review the updated rates. No submissions were received.

Fitness Industry Award 2010

[28] In the April 2020 decision we expressed a number of provisional views in relation to outstanding issues in the Fitness Award. On 30 April 2020, the Exposure Draft and a draft variation determination were published in accordance with our provisional views and parties were provided an opportunity to make submissions. No submissions were received. We confirm our provisional views expressed at paragraphs [88]-[90], [93] and [96] of the April 2020 decision.

Live Performance Award 2010

[29] The outstanding issue in the Live Performance Award concerns the time off in lieu of payment for overtime (TOIL) clause.

[30] In the April 2020 decision parties were directed to file wording on a time off in lieu of overtime (TOIL) provision to be inserted into the exposure draft. 27 A submission was filed by Live Performance Australia28 on 5 May 2020 outlining a TOIL term for the consideration of the Full Bench. The TOIL provision is agreed between Live Performance Australia and the Media Entertainment and Arts Alliance. The agreed TOIL provision is as follows:

A.1 Who this clause applies to

(a) A full time or part time employee engaged by the one employer for a period of at least 12 months.

A.2 Who this clause does not apply to

(a) A performer or company dancer who is engaged for the run of a play/production or for a specific period or task; and

(b) A musician who is engaged for the run of a play/production or for a specific period or task; and

(c) A production and support staff who is engaged on a particular play/production for the duration of that play/production; and

(d) A production and support staff who is engaged for a specific period or task; and

(e) A casual employee.

A.3 Time off instead of payment for overtime

(a) An employee and employer may agree in writing to the employee taking time off instead of being paid for a particular amount of overtime that has been worked by the employee.

(b) Any amount of overtime that has been worked by an employee in a particular pay period and that is to be taken as time off instead of the employee being paid for it must be the subject of a separate agreement under clause A.3(a).

(c) An agreement must state each of the following:

(i) the number of overtime hours to which it applies and when those hours were worked;

(ii) that the employer and employee agree that the employee may take time off instead of being paid for the overtime;

(iii) that, if the employee requests at any time, the employer must pay the employee, for overtime covered by the agreement but not taken as time off, at the overtime rate applicable to the overtime when worked;

(iv) that any payment mentioned in subparagraph (iii) must be made in the next pay period following the request.

Note: An example of the type of agreement required by this clause is set out at Schedule [x]. There is no requirement to use the form of agreement set out at Schedule [x]. An agreement under clause A.1 can also be made by an exchange of emails between the employee and employer, or by other electronic means.

(d) The period of time off that an employee is entitled to take is the same as the number of overtime hours worked.

EXAMPLE: By making an agreement under clause A.3 an employee who worked 2 overtime hours is entitled to 2 hours’ time off.

(e) Time off must be taken:

(i) within the period of 6 months after the overtime is worked; and

(ii) at a time or times within that period of 6 months agreed by the employee and employer.

(f) If the employee requests at any time to be paid for overtime covered by an agreement under clause A.3 but not taken as time off, the employer must pay the employee for the overtime, in the next pay period following the request, at the overtime rate applicable to the overtime when worked.

(g) If time off for overtime that has been worked is not taken within the period of 6 months mentioned in paragraph (e), the employer must pay the employee for the overtime, in the next pay period following those 6 months, at the overtime rate applicable to the overtime when worked.

(h) The employer must keep a copy of any agreement under clause A.3 as an employee record.

(i) An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to make, or not make, an agreement to take time off instead of payment for overtime.

(j) An employee may, under section 65 of the Act, request to take time off, at a time or times specified in the request or to be subsequently agreed by the employer and the employee, instead of being paid for overtime worked by the employee. If the employer agrees to the request then clause A.1 will apply, including the requirement for separate written agreements under paragraph (b) for overtime that has been worked.

Note: If an employee makes a request under section 65 of the Act for a change in working arrangements, the employer may only refuse that request on reasonable business grounds (see section 65(5) of the Act).

(k) If, on the termination of the employee’s employment, time off for overtime worked by the employee to which clause A.3 applies has not been taken, the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.

Note: Under section 345(1) of the Act, a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause A.1.

AGREEMENT FOR TIME OFF INSTEAD OF PAYMENT FOR OVERTIME

Name of employee: ______________________________________

Name of employer: _______________________________________

The employer and employee agree that the employee may take time off instead of being paid for the following amount of overtime that has been worked by the employee:

Date and time overtime started: ___/___/20___ ____ am/pm

Date and time overtime ended: ___/___/20___ ____ am/pm

Amount of overtime worked: _______ hours and ______ minutes

The employer and employee further agree that, if requested by the employee at any time, the employer must pay the employee for overtime covered by this agreement but not taken as time off. Payment must be made at the overtime rate applying to the overtime when worked and must be made in the next pay period following the request.

Signature of employee: __________________________________

Date signed: ___/___/20___

Name of employer representative: __________________________

Signature of employer representative: ________________________

Date signed: ___/___/20___

[31] We have decided to insert the agreed provision into the final variation determination at clause 12. The template agreement for time off instead of payment for overtime will be inserted as Schedule G and the current Schedule G (which deals with part-day public holidays) will be renumbered Schedule H.

[32] The agreed clause is similar to the provision in a majority of modern awards save that it only applies to a ‘. . . full time or part time employee engaged by the one employer for a period of at least 12 months.’ While this 12 month qualification period is not a common feature of other modern awards we are prepared to proceed on the basis that it is an appropriate qualification having regard to the nature of the employment arrangements covered by this award.

[33] There is one further issue to note in relation to clause 34.5 of the exposure draft. The MEAA filed a draft Live Performance Award on 27 June 2019 which it stated had been agreed to by LPA. A background paper was published on 23 March 2020 inviting parties to comment on the redrafted clause 34.5 and LPA’s submission that the clause reflects the parties proposed changes. No comments were received. At [234] of the April 2020 Decision, we said:

‘We do not propose to make the change proposed by the LPA. The change proposed is a substantive departure from the current award term at clause 28.5(b) and as such goes beyond matters that are being finalised by this technical and drafting Full Bench. If LPA wishes to pursue this issue it may make an application to vary the award.’

[34] The draft award variation determination published on 30 April 2020 erroneously incorporated the parties’ agreed changes to clause 34.5 contrary to the April 2020 Decision. The variations to clause 34.5 have now been removed and the final variation determination will reflect the terms in the previously published Exposure Draft of 5 April 2019 (clause 35.5).

Racing Clubs Events Award 2010

[35] No comments were received in relation to the finalisation of the variation of this award.

Registered and Licensed Clubs Award 2010

[36] A Statement 29 was issued on 30 April 2020 in relation to the Registered Clubs Award. The Statement addressed outstanding substantive claims to vary the Registered Clubs Award that arose during the award stage of the Review. In a further Statement30 issued on 18 May 2020, the outstanding claims in the Registered Clubs Award were referred to a Full Bench (AM2020/26) for hearing and determination.31 This matter is ongoing, and the variation determination will not be published in final form until the claims in AM2020/26 have been finalised.

[37] We now turn to deal with the award specific issues in the category 3 awards.

4. Category 3 – Award specific issues

[38] The awards in Category 3 are:

•  Broadcasting Award

•  Electrical Contracting Award

•  Food Manufacturing Award

•  Graphic Arts Award

•  Horticulture Award

•  Telecommunications Award

•  Textile Award

•  Timber Award

•  Wine Industry Award

[39] Revised exposure drafts and draft variation determinations in respect of the Category 3 awards above were published in May 2020. 32

[40] Conferences were convened in respect of the disputed issues in the Category 3 Awards, excluding the Textile Award. As outlined in our April 2020 decision 33 a further conference will be convened after the Overtime for Casuals Full Bench (AM2017/51) has determined the outstanding issues in respect of this award.

[41] Following the conferencing process parties were provided an opportunity to file written material in respect of the outstanding issues discussed at the conferences. The following submissions and submissions in reply were received:

•  Australian Business Industrial and NSW Business Chamber (ABI&NSWBC) – Submissions re Telecommunications Services Award 2010 – 29 May 2020.

•  ABI&NSWBC – Submissions re Timber Industry Award 2010 – 19 June 2020.

•  Australian Manufacturing Workers’ Union (AMWU) – Submissions re Graphic Arts, Printing and Publishing Award 2010 – 26 May 2020.

•  AMWU – Submissions re Food, Beverage and Tobacco Manufacturing Award 2010 – 9 June 2020.

•  Communications Electrical Plumbing Union (CEPU) – Submissions re Electrical, Electronic and Communications Contracting Award 2010 – 26 May 2020.

•  CEPU – Submissions re Electrical, Electronic and Communications Contracting Award 2010 – 27 July 2020.

•  Cinema Industry Employers – Submissions re Broadcasting, Recorded Entertainment and Cinemas Award 2010 – 25 May 2020.

•  Construction, Forestry, Maritime, Mining & Energy Union (Manufacturing Division) (CFMMEU – Manufacturing Division) – Submissions re Timber Industry Award 2010 – 1 June 2020.

•  CFMMEU – Manufacturing Division – Submissions re Timber Industry Award 2010 – 26 June 2020.

•  Housing Industry Association (HIA) – Submissions re Timber Industry Award 2010 – 17 June 2020.

•  National Electrical and Communications Association (NECA) – Submissions re Electrical, Electronic and Communications Contracting Award 2010 – 18 June 2020

•  National Farmers Federation (NFF) – Submissions re Horticulture Award 2010 – 7 July 2020.

•  The Australian Workers' Union (AWU) – Submissions re Horticulture Award 2010 – 8 July 2020.

Broadcasting, Recorded Entertainment and Cinemas Award 2010

[42] The April 2020 decision noted that a conference would be convened to discuss the proposal by Birch Carroll and Coyle and other cinema industry employers regarding casual conversion of casuals in cinemas within the Broadcasting Award. 34 A revised Exposure Draft and a draft award variation determination were published on 15 May 2020 and Deputy President Clancy conducted a conference on 26 May 2020.

[43] On 1 June 2020, Deputy President Clancy issued a Report to the Full Bench which outlined BCC’s view that there is an anomaly at clauses 8.2 and 11 of the Exposure Draft. These clauses relate to casual conversion of casual employees in cinemas. The anomaly arises as clause 8.2 states that clause 11 (dealing with casual employees) does not apply to employees in cinemas, whereas clause 11.5(k)(ii) implies that it does.

[44] The Report to the Full Bench set out that:

‘The Full Bench in the Part-time and Casual Employment common issues proceeding has previously determined that a casual conversion clause should be inserted into the Broadcasting Award. In doing so, the Full Bench had regard to a concern raised by Birch Carroll & Coyle Limited, The Hoyts Corporation Pty Limited, The Greater Union Organisation Pty Ltd, Village Cinemas Limited and Independent Cinemas Association of Australia (cinema industry employers) that the draft determination published in conjunction with the Full Bench decision issued on 9 August 20183 would result in the establishment of two classes of part-time employees working alongside one another.’

[45] The Part-time and Casual Full Bench formed the view that the concern of the cinema industry employers could be addressed by modifying paragraph j(ii) of the casual conversion clause so that it read:

‘(ii) if it is agreed that the employee will become a part-time employee, the matters referred to in clauses 54.3(a), 55.1(c) and 55.2(d) in respect of cinema employees and the matters referred to in clause 10.4(c) in respect of all other employees.’

[46] The Report to the Full Bench also set out that the Birch Carroll and Coyle proposed the following changes to the Exposure Draft to deal with the issues raised:

•  Amending the text of clause 8.2 Special provisions for employees in cinemas as follows:

Clauses 9—Full-time employees to 11—Casual employees 11.4 will not apply to employees in cinemas (see clause 57—Types of employment)

•  Amending the text of clause 11.5(k)(ii) as follows:

(k) Where it is agreed that a casual employee will have their employment converted to full-time or part-time employment as provided for in clause 11.5, the employer and employee must discuss and record in writing:

(i) the form of employment to which the employee will convert – that is, full-time or part-time employment; and

(ii) if it is agreed that the employee will become a part-time employee, the matters referred to in clauses 10.1 57.3, 58.3 and 59.4 in respect of cinema employees and the matters referred to in clause 10.4 in respect of all other employees.

[47] The Report to the Full Bench noted that this proposal was supported by Live Performance Australia (LPA) and Australian Business Industrial (ABI) and that it raised no concerns for the Community and Public Sector Union (the CPSU) or the Media, Entertainment and Arts Alliance (the MEAA).

[48] In a Statement 35 issued on 4 June 2020, we advised that it was our provisional view that the Broadcasting Award should be varied as set out in the Report to the Full Bench. We invited submissions from interested parties and noted that if no submissions were received, we would issue a final variation determination giving effect to our provisional view.

[49] No submissions were received and in accordance with the Statement 36 issued 4 June 2020, the final variation determination for the Broadcasting Award has been amended as set out above.

[50] The Report to the Full Bench also outlined that the parties at conference sought some consequential amendments to the Broadcasting Award as a result of the insertion of clause 13.5(b) into the draft award variation determination which was published on 15 May 2020. The consequential amendments relate to renumbered clauses 13.5(d) and 15.3(e) as follows:

•  Amending the text of renumbered clause 13.5(d) as follows:

(d) Junior employees in clause 13.5(b)13.5(c) must be paid the adult minimum rate for the appropriate classification.

•  Amending the text of renumbered clause 13.5(e) as follows:

(e) Clauses 13.5(a), 13.5(b)13.5(c) and 13.5(d) do not apply to juveniles, as defined, in the performer classifications (including extras, double bit players). These performers will be paid at a rate of 50% of the adult minimum rate of the appropriate classification.

[51] In the Statement 37 issued 4 June 2020, we advised that it was our provisional view that the Broadcasting Award should be varied as set out in the Report to the Full Bench. We invited submissions from interested parties and noted that if no submissions were received, we would issue a final variation determination giving effect to our provisional view.

[52] No submissions were received and in accordance with the Statement 38 issued 4 June 2020, the final variation determination has been amended as set out above.

[53] The Broadcasting Award has also been amended to incorporate changes required as a result of [2017] FWCFB 3803 39 and [2020] FWCFB 1511.40 Additional changes were made to a number of the provisions amended in accordance with [2020] FWCFB 1511 to account for changes made by agreement to the exposure draft in 201741 inserting a new Cinema Worker Level 3 and renumbering Cinema Worker Levels 3 to 6 as Cinema Worker Levels 4 to 7.42

Electrical, Electronic and Communications Contracting Award 2010

[54] The April 2020 decision noted that there remained a number of disputed issues in the exposure draft for the Electrical Contracting Award. 43 A draft variation determination was published on 14 May 2020 and Deputy President Clancy held a conference for interested parties on 25 May 2020.

[55] On 1 June 2020, Deputy President Clancy issued a Report to the Full Bench which outlined the agreed position of interested parties regarding the disputed matters.

Definition of ordinary hourly rate

[56] As outlined in the April 2020 decision, ABI submits that the definition of ‘ordinary hourly rate’ in clause B.1.1 is different to the definition of ‘ordinary hourly rate’ contained in clause 2 of the exposure draft. To resolve this, ABI submitted that that the definition in clause B.1.1 should be amended to reflect the definition in clause 2.

[57] As noted in the Tranche 3 Background Paper 44 Schedule B.1.1 does not contain a definition of ‘ordinary hourly rate’ as such, but rather explains the basis for the calculation of the rates that follow in the tables contained in Schedule B.

[58] The Report to the Full Bench outlined that Ai Group’s position was that while there is a difference between the two definitions of ‘ordinary hourly rate’ it did not foresee that this is likely to cause any conflict because the definition in B.1.1. reflects that the only all-purpose allowances to be included are the industry allowance and tool allowance (for applicable employees), whereas in the other parts of the Electrical Communications Award, the definition is to be read to include every all-purpose allowance.

[59] Following a discussion at the conference, the parties agreed for the definition in clause B.1.1 to be amended as follows:

‘Ordinary hourly rate for the purposes of Schedule B includes the industry allowance (clause 18.3(a)) and tool allowance as applicable (clause 18.3(g)) which are payable for all purposes.’ (amendment underlined)

[60] In the Statement 45 issued 4 June 2020, we advised that it was our provisional view that the Electrical Communications Award should be varied as set out in the Report to the Full Bench. We invited submissions from interested parties and noted that if no submissions were received, we would issue a final variation determination giving effect to our provisional view.

[61] On 18 June 2020, we received a submission 46 from the National Electrical and Communications Association (NECA). NECA advised that it did not participate in the conference before Deputy President Clancy and submitted that:

‘…although the leading hand allowance, the nominee allowance, the electrical distribution line maintenance and tree clearing allowance, and the rate for ordering materials are not commonly applied, the same cannot be said for the electrician’s licence allowance at clause 18.3(b). That allowance applies to Grade 5 tradespersons who have obtained an electrician’s licence and all other higher classifications as defined at Schedule A of the Exposure Draft.’ 47

[62] NECA submitted that the definition in B.1.1 should be amended to read:

‘Ordinary Hourly Rate for the purposes of Schedule B includes the industry allowance, (clause 18.3(a)), and where applicable, electricians licence allowance (clause 18.3(b)), tool allowance (clause 18.3(g)) and other all purpose allowance set out in clause 18.3 which are payable for all purposes.’

[63] In a Statement 48 issued 16 July 2020 we invited interested parties to respond to the NECA submission. On 27 July 2020, the CEPU filed a response49 opposing the NECA submission, on the basis that:

‘a. NECA’s proposal will lead to inaccurate calculations when the tables in Schedule B are utilised, as the ordinary rates of pay in Schedule B do not include the electrician’s licence allowance and all other applicable all-purpose allowances. These allowances need to be added in addition to the rates specified in the tables. NECA’s proposed clause does not read in this manner; and

b. In any event, ‘Schedule B.1.1 is not intended to contain a definition of ‘ordinary hourly rate’ as prescribed by clause 2, rather it is intended to explain the basis for the calculation of the ordinary rates in the Schedule B tables.’

[64] We reiterate the point made in the Tranche 3 Background Paper that Schedule B.1.1 does not contain a definition of ‘ordinary hourly rate’, but explains the basis for the calculation of the rates that follow in the tables contained in Schedule B. We agree with the proposal in the Report to the Full Bench that the words ‘for the purposes of Schedule B’ be inserted into clause B.1.1 to make this clearer.

[65] The rates contained in Schedule B are indicative only. Should an employee be entitled to an all-purpose allowance which is not the industry allowance or the tool allowance (as applicable), this must be added to the rates contained in the applicable tables in Schedule B. We agree with the submission of the CEPU that NECA’s proposed clause does not read in the manner in which Schedule B operates. We also agree with the submission of the CEPU that Schedule B.1.1 is not intended to contain a definition of ‘ordinary hourly rate’ as prescribed by clause 2, but rather it is intended to explain the basis for the calculation of the ordinary rates in the Schedule B tables. The definition of ‘ordinary hourly rate’ at clause B.1.1 will be amended as set out in the Report to the Full Bench, as follows:

‘Ordinary hourly rate for the purposes of Schedule B includes the industry allowance (clause 18.3(a)) and tool allowance as applicable (clause 18.3(g)) which are payable for all purposes.’ (amendment underlined)

Replication of the ‘public holiday’ column

[66] The Report to the Full Bench notes that ABI no longer presses its claims in relation to the ‘public holiday’ columns in Schedule B. No further action is required in relation to this issue.

Incorrect public holiday penalties for shiftworkers

[67] The Report to the Full Bench sets out this matter in detail as follows:

‘[13] ABI notes that Table B.2.4 provides for “overtime rates” and includes a “public holiday” column but submits that the percentage set out in that column (250%) is the incorrect percentage for all shiftworkers. It says that public holiday penalties for shiftworkers are contained in clause 13.15 of the Exposure Draft and that the penalty which applies on a public holiday differs depending on whether the employee is a continuous shiftworker or a shiftworker “on other than a continuous work”. ABI submits that the applicable penalties payable on a public holiday to both categories of shiftworkers are correctly outlined in the last column of Table B.2.3.

[14] Following discussion, the parties agreed with a suggestion of the CEPU that this issue could be addressed by deleting the current public holiday column in Table B.2.4 and replacing it with the two public holiday sub-columns for continuous shiftworkers and other than continuous shiftworkers, from Table B.2.3.

[15] The CEPU raised an additional matter in relation to the column for Sunday work in Table B.2.3, submitting that this could be clarified for non-continuous shiftworkers with the insertion of a Note in relation to the heading of the ‘Sunday’ column (to become Note 5) that would state “This is the rate at which shiftworkers on other than continuous work are to be paid for all time worked on a Sunday (see clause 13.15(b)(i))”.’

[16] This was agreed by ABI and the Ai Group.’

[68] In the Statement 50 issued 4 June 2020, we advised that it was our provisional view that the Electrical Communications Award should be varied as set out in the Report to the Full Bench, above. We invited submissions regarding our provisional view.

[69] In its 18 June 2020 submission, NECA advised that it agreed with the deletion of the current public holiday column in Table B.2.4 and its replacement with the two public holiday sub-columns for continuous shiftworkers and other than continuous shiftworkers. 51 NECA also advised that it does not oppose the insertion of note 5.

[70] As the submission received supports our provisional view, the variation determination will be amended as outlined above.

[71] We note NECA in their submission of 18 June 2020 submitted that:

‘…paragraphs 13.15(a) and 13.15(b) as they apply to Sundays and public holidays are inconsistent. Paragraph (a), in referring to continuous shift workers, applies a loading to “a shift the major portion of which falls on a Sunday or Public Holiday”. Paragraph (b), in referring to non continuous shift workers, applies a loading to “all time worked on a Sunday or Public Holiday”.

Paragraphs (c) and (d) appear to be in reference to paragraph (a) and not (b) although there is no statement to that effect in sub clause 13.15.’ 52

[72] In reply, the CEPU stated that:

‘Whilst CEPU acknowledges the point being made by NECA, the CEPU is of the view that clause 13.15 should remain unchanged as the inconsistency does not arise when the clause is read as a whole.’ 53

[73] We agree with the submission of the CEPU; when the clause is read as a whole the inconsistency does not arise.

Casual shiftworkers

[74] ABI submitted that the table at clause B.3.2 of Schedule B of the draft variation for ‘casual shiftworkers’ includes a ‘Day’ column and submitted that this is unnecessary, as the table is for shiftworkers only and the rates applicable to day workers are already provided for in the table appearing at clause B.3.1.

[75] The Report to the Full Bench notes that the interested parties agreed that the ‘Day’ column from Table B.3.1 should be removed on the basis that it is unnecessary. 54

[76] In the Statement 55 issued 4 June 2020, we advised that it was our provisional view that the Electrical Communications Award should be varied as set out in the Report to the Full Bench, above. We invited submissions regarding our provisional view.

[77] In its 18 June 2020 submission, NECA submitted that it did not agree that the ‘Day’ column should be removed. NECA submitted that:

‘Casual and permanent employees who work on a day shift as part of a shift system are shift workers and not ‘other than shift workers’ or day workers.

Further the ‘Day’ column acts as a guide to how shift penalties for casual workers are calculated.’ 56

[78] We do not agree with NECA’s submission and confirm our provisional view that the day column be removed.

All purpose rates for apprentices – fare and travel time allowances

[79] In the Exposure Draft published 29 January 2020 57 the Commission asked the parties to consider whether the fares allowance in clause 18.6(d) and travel time allowance in clause 18.6(c) should be included in the all-purpose rate for apprentices.

[80] The Report to the Full Bench notes that the parties agreed that the fares allowance in clause 18.6(d) and the travel time allowance in clause 18.6(c) should not be included in the all purpose rate. The Report to the Full Bench notes that there was a ‘productive and constructive discussion and the parties agreed that the fares allowance in clause 18.6(d) and the travel time allowance in clause 18.6(c) should not be included in the all purpose rate’. The parties agreed to a proposal by the CEPU whereby clause 16.4(a)(iii) of the Exposure Draft would be deleted and the following inserted (agreed amendments in red):

‘(iii) In addition to the minimum wage payments arising from clause 16.4(a)(i) or clause 16.4(a)(ii), apprentices will be paid the full amount of the tool allowance in clause 18.3(g) and the fares allowances in clause 18.6(d) and the percentages shown in clause 16.4(a)(i) or clause 16.4(a)(ii) of the electrician’s licence allowance in clause 18.3(b), the travel time allowance in clause 18.6(c) and the industry allowance in clause 18.3(a). Any other special allowances in clauses 18.4 and 18.5 and allowances for travel and expenses in clauses 18.6 and 18.7 will be paid to apprentices on an ‘as incurred’ basis at the rate specified, subject to clause 18.2(b).

(iv) The weekly all-purpose rate to be paid to an apprentice will be the sum of the minimum wage rate arising from clause 16.4(a)(i) or clause 16.4(a)(ii), the full amount of the tool allowance in clause 18.3(g) and the percentages shown in clause 16.4(a)(i) or clause 16.4(a)(ii) of the electrician’s licence allowance in clause 18.3(b), and the industry allowance in clause 18.3(a). The weekly all-purpose rate of pay is payable for all purposes of the award and will be included as appropriate when calculating payments for overtime, all forms of paid leave, annual leave loading, public holidays and pro rata payments on termination.’

[81] The Report to the Full Bench notes that the parties agreed that such changes would resolves all issues relating to all-purpose rates for apprentices, in so far as there was a question as to whether they should include fare and travel time allowances.

[82] In the Statement 58 issued 4 June 2020, we advised that it was our provisional view that the Electrical, Electronic and Communications Award should be varied as set out in the Report to the Full Bench, above. We invited submissions regarding our provisional view.

[83] In its 18 June 2020 submission, NECA advised that it agreed and supports the submissions previously made by Ai Group and ABI regarding this matter and that it agreed to the amendments proposed by the CEPU.

[84] As the submission received supported our provisional view, the variation determination will be amended as outlined above.

Consequential amendments

[85] Following on from the changes outlined above in relation to clause 16.4(a)(iii) and new clause 16.4(a)(iv), ABI pressed a concern regarding a minor proposed amendment to the fourth paragraph underneath the heading ‘Schedule B.4 Apprentice rates’.

[86] The Report to the Full Bench notes that so as to ensure consistency with the changes proposed to be made to clause 16.4(a) for junior apprentices set out above, the parties agreed that the fourth paragraph underneath the heading ‘Schedule B.4 Apprentice rates’ should be amended as follows: ‘The apprentice hourly rate for junior apprentices is calculated in accordance with clause 16.4(a)(iv).’

[87] In the Statement 59 issued 4 June 2020, we advised that it was our provisional view that the Electrical, Electronic and Communications Award should be varied as set out in the Report to the Full Bench, above. We invited submissions regarding our provisional view.

[88] No submissions were received in relation to this matter and we will amend the variation determination as set out above.

[89] The Report to the Full Bench further noted that the CEPU argued that the word ‘all purpose’ should be deleted from the various footnotes for ‘Apprentice hourly rate’ under each table in Schedule B.4. The report noted that the CEPU believed this was necessary so that the footnote would capture all other allowances to be paid in addition to the apprentices’ hourly rate, including the fare and travel time allowance.

[90] The Report to the Full Bench noted that after discussion, the parties agreed that the footnotes for ‘Apprentice hourly rate’ under each table throughout Schedule B.4 should be amended, by deleting the sentence ‘Any additional all-purpose allowances applicable need to be added to these rates’.

[91] In the Statement 60 issued 4 June 2020, we advised that it was our provisional view that the Electrical, Electronic and Communications Award should be varied as set out in the Report to the Full Bench, above. We invited submissions regarding our provisional view.

[92] In its 18 June 2020 submission, NECA advised that it agreed with the above amendment.

[93] As the submission received supported our provisional view, the variation determination will be amended as outlined above.

[94] We also note that a determination 61 in the Payment of Wages matter (AM2016/8) has been issued for this award which amends clause 22.3 of the exposure draft. The final variation determination has been updated in line with the determination issued in AM2016/8.

Food, Beverage and Tobacco Manufacturing Award 2010

Casual ordinary hourly rate

[95] The April 2020 decision noted that there remained disputed issues in respect of casual employees in the exposure draft for the Food Manufacturing Award. 62 A draft variation determination was published on 8 May 2020 and Deputy President Clancy held conferences on 25 May 2020 and 9 June 2020.

[96] As indicated in the April 2020 decision, it is the AMWUs position that clause 10 of the variation determination does not currently clarify that where casual employees are entitled to a penalty rate or shift loading, that penalty or loading is to be calculated as a percentage of the casual ordinary hourly rate and not the ordinary hourly rate. There is no dispute between the parties that the casual loading is payable on a compounding basis when overtime is worked.

[97] As outlined in the April 2020 decision, ABI does not oppose an amendment as proposed by the AMWU but noted that there was an inconsistency with what was proposed and the current definition of casual ordinary hourly rate contained in clause B.1.2 of the draft variation determination.

[98] On 11 June 2020, Deputy President Clancy issued a Report to the Full Bench which outlined the agreed position of the parties resolving the matters in dispute. The Report to the Full Bench noted that it was agreed to delete clauses 10.2 and 10.3 and insert in their place the following:

10.2 A casual employee working ordinary time must be paid:

(a) the ordinary hourly rate; plus

(b) a casual loading of 25% of the ordinary hourly rate.

10.3 The loading constitutes part of the casual employee’s all-purpose rate.

10.4 The resulting rate is the casual ordinary hourly rate.

10.5 Where this award refers to a penalty rate or shift loading as being calculated as a percentage of the ordinary hourly rate, that reference will (for a casual employee) instead be taken to be a reference to the casual ordinary hourly rate if the entitlement is applicable to a casual employee.

[99] The Report to the Full Bench notes that the remainder of clause 10 would need to be renumbered and that there would be consequential amendments to the following clauses:

•  Clause 7.2(a) – reference to clause 10.4 being amended to 10.6

•  Clause 7.3(a) – reference to clause 10.6(j) being amended to 10.8(j).

[100] The Report to the Full Bench set out that with respect to Schedule B, the parties agreed to the following:

•  Deleting clause B.2.1 and inserting in its place:

‘Casual minimum hourly rate includes the casual loading which is payable for all purposes. Where an allowance is payable for all purposes in accordance with clause 20.2, this forms part of an employee’s casual ordinary hourly rate and 3 must be added to the applicable permanent minimum hourly rate in B.1. prior to the application of the 25% casual loading to form the casual employee’s ordinary hourly rate. The casual ordinary hourly rate applies for all purposes and is used to calculate penalties and overtime.’

•  Inserting a new clause B.2.2 as follows:

‘The rates in the table below do not contain any clause 20.2 all-purpose allowances. Where a casual employee is entitled to a clause 20.2 all-purpose allowance the casual employee’s ordinary hourly rate is calculated according to B.2.1.’

•  Renumbering tables B.2.2 and B.2.3 as B.2.3 and B.2.4 respectively.

•  Replacing footnote 1 in table B.2.3 and footnote 2 in table B.2.4 with the following:

‘Rates in table are calculated based on the casual minimum hourly rate see clauses B.2.1 and B.2.2.’

•  Inserting a new table B.2.5 as follows:

B.2.5 Casual employees – other than continuous shiftworkers – overtime

¹ Rates in table are calculated based on the casual minimum hourly rate see clauses B.2.1 and B.2.2.

•  Inserting a new table B.2.6 as follows:

B.2.6 Casual employees – continuous shiftworkers – overtime

¹ Rates in table are calculated based on the casual minimum hourly rate see clauses B.2.1 and B.2.2

[101] In the Statement 63 issued 15 June 2020, we advised that it was our provisional view that the Food Manufacturing Award should be varied as set out in the Report to the Full Bench. We invited submissions from interested parties and noted that if no submissions were received, we would issue a final variation determination giving effect to our provisional view.

[102] No submissions were received, so we propose to insert the above into the final variation determination.

[103] The above clauses may be impacted by a pending determination to be issued by the Full Bench in the overtime for casuals matter (AM2017/51). The Full Bench in AM2017/51 issued a decision on 18 August 2020 64 (the August 2020 decision), along with a draft determination to vary the Food Manufacturing Award. In the August 2020 decision, the Full Bench noted that the Food Manufacturing award fell into a category of awards where ‘the consensus is that the overtime penalty rate is applied to an ordinary hourly rate consisting of the minimum hourly rate and the casual loading (i.e. the compounding approach)’. The parties to AM2017/51 were provided an opportunity to comment on the contents of the draft determination.

[104] On 14 September 2020, the AMWU filed a submission in AM2017/51 noting a concern that any change made to the award in AM2017/51 would shortly be superseded by the variation determination issued to be by this Full Bench. 65

[105] To avoid any potential confusion arising between the matters we have decided not to issue the final variation determination for this award until after the determination in AM2017/51 is finalised. Any variation arising from AM2017/51 will be incorporated into the final variation determination issued by this bench. It should be noted that any determination issued in AM2017/51 will be incorporated in a way that reflects the plain language drafting principles that have been applied throughout the exposure draft process.

[106] We also note that a determination 66 in the Payment of Wages matter (AM2016/8) has been issued for this award which amends clause 19.6 of the exposure draft. The final variation determination has been updated in line with the determination issued in AM2016/8.

Graphic Arts, Printing and Publishing Award 2010

[107] The April 2020 decision noted that there remained a disputed issue regarding penalties payable to shiftworkers who work overtime on a public holiday in the exposure draft for the Graphic Arts Award. 67 A draft variation determination was published on 8 May 2020 and Deputy President Clancy held a conference for interested parties on 25 May 2020.

Penalties payable to shiftworkers who work overtime on a public holiday.

[108] As indicated in the April 2020 decision, Ai Group raised an issue concerning the penalties payable to shiftworkers who work overtime on a public holiday. Ai Group submitted that the issue arises from the wording in clauses 37.3 and 37.4 and that:

‘Unless the problem is addressed before the new version of the award comes into operation, employers will be required to pay shift workers who work overtime on a public holiday a rate of up to 325% of the ordinary rate, rather 250% of the ordinary rate, as currently applies. This would be unfair and unjust and hence inconsistent with ss.3(b), 134 and 577 of the Fair Work Act 2009.’ 68

[109] On 1 June 2020, Deputy President Clancy issued a Report to the Full Bench which outlined the proposal put forward by Ai Group as follows:

‘37.3 An employee required to work on a public holiday or a substitute day, as provided for in the NES or clause 37.5, will be paid as follows with a minimum payment of 4 hours:

For ordinary hours 250% of the ordinary hourly rate

For overtime 250% of the overtime ordinary hourly rate

Provided that:

(a) an employee required as an inserter in a non-daily newspaper office who is required to work on a public holiday will be paid as follows with a minimum payment of 2 hours:

For ordinary hours 250% of the ordinary hourly rate

For overtime 250% of the overtime ordinary hourly rate

(b) an employee engaged as a publishing employee in a non-daily newspaper office who is required to work on a public holiday will be paid as follows with a minimum payment of 3 hours:

For ordinary hours 250% of the ordinary hourly rate

For overtime 250% of the overtime ordinary hourly rate

37.4 Where a weekly employee in a non-daily or regional daily newspaper office, other than an employee listed in clauses 37.3(a) and 37.3(b), is required to work on a public holiday they will be given a day off instead within 7 days of the holiday occurring or be paid as follows with a minimum payment of 4 hours:

For ordinary hours 250% of the ordinary hourly rate

For overtime 250% of the overtime ordinary hourly rate

Provided clause 37.4 applies instead of the provisions in clause 37.3.’

[110] The Report to the Full Bench noted that ABI agreed with the changes proposed at conference and that the AMWU, subsequent to the conference, confirmed that it does not oppose the changes sought.

[111] In a Statement 69 issued 4 June 2020, we advised that it was our provisional view that the Graphic Arts Award should be varied as set out in paragraph [4] of the Report to the Full Bench. We invited submissions from interested parties and noted that if no submissions were received, we would issue a final variation determination giving effect to our provisional view.

[112] No submissions were received and in accordance with the Statement 70 issued 15 June 2020 so we propose to insert the above into the final variation determination.

[113] It should be noted that the above clauses may be impacted by a pending determination to be issued by the Full Bench in the overtime for casuals matter (AM2017/51). In their August 2020 decision, the Full Bench outlined that the Graphic Arts Award fell into the category of awards where ‘the consensus is that the overtime penalty rate is applied to an ordinary hourly rate consisting of the minimum hourly rate and the casual loading (i.e. the compounding approach)’. This is the same approach that was adopted by the Full Bench in relation to the Food Manufacturing Award (see [103] above). A draft determination was issued relating to the Graphic Arts Award and the parties to AM2017/51 were provided an opportunity to comment on the contents of the draft determination.

[114] On 14 September 2020, the AMWU filed a submission in AM2017/51 noting a concern that any change made to the award in AM2017/51 would shortly be superseded by the variation determination issued to be by this Full Bench. 71

[115] To avoid any potential confusion we will not issue the final variation determination for this award until after the determination in AM2017/51 is finalised. As mentioned earlier, any determination issued in AM2017/51 will be incorporated in a way that reflects the plain language drafting principles that have been applied throughout the exposure draft process.

[116] We also note that a determination 72 in the Payment of Wages matter (AM2016/8) has been issued for this award relating which amends clause 25.7 of the exposure draft. The final variation determination has been updated in line with the determination issued in AM2016/8.

Horticulture Award 2010

[117] The April 2020 decision noted that there remained a disputed issue regarding clause 10.2 of the exposure draft for the Horticulture Award. 73 A draft variation determination was published on 8 May 2020 and Deputy President Clancy held a conference for interested parties on 26 May 2020.

Clause 10.2 – Part-time employees

[118] Ai Group submitted that clause 10.2 is incomplete as a cross reference has been omitted and proposes that the clause be amended to read:

‘10.2 Subject to clause 15.2, for each ordinary hour worked, a part-time employee will be paid no less than the ordinary hourly rate for the classification.’ (amendment sought underlined)

[119] On 1 June 2020, Deputy President Clancy issued a Report to the Full Bench which outlined the claim made by Ai Group as follows:

‘[4] Essentially, what the Ai Group suggests and seek is that there be an explicit ‘carve out’ in clause 10.2 for part time employees who are being paid at a piece rate. Further, Ai Group submits that as clause 15 just prescribes minimum rates, a reference to minimum rates in a clause that deals with the ordinary hourly rates (clause 10.2) is potentially confusing.’

[120] The Report to the Full Bench noted that ABI and the National Farmers Federation (NFF) agreed with the proposal of Ai Group, and that ABI proposed a similar amendment to clause 11.3 which deals with casual employees for consistency.

[121] The Report to the Full Bench noted that after discussions with the AWU, there was consensus amongst the parties that clause 10.2 should be redrafted as follows:

‘10.2 Subject to clause 15.2, for each ordinary hour worked, a part-time employee will be paid no less than the ordinary hourly rate for the relevant classification.’ (changes underlined)

[122] The Report to the Full Bench noted that there was also consensus that clause 11.3(a) relating to casual employees should be redrafted as follows:

‘11.3 Casual loading

(a) Subject to cause 15.2, for each hour worked, a casual employee must be paid: …’

[123] In a Statement 74 issued 4 June 2020, we advised that it was our provisional view that the Horticulture Award should be varied as set out in paragraphs [9] and [10] of the Report to the Full Bench. We invited submissions from interested parties and noted that if no submissions were received we would issue a final variation determination giving effect to our provisional view.

[124] No submissions were received in relation to this matter and in accordance with the Statement 75 issued 4 June 2020, the variation determination has been amended as set out above.

Additional matters

[125] The Report to the Full Bench noted that at the conference, the NFF flagged a concern with clause 21.4 of the draft variation determination published on 8 May 2020. Deputy President Clancy summarised the issue as follows:

‘[11] The NFF, taking up the opportunity outlined in the Decision of the Full Bench dated 27 April 2020 for interested parties to review the republished draft variation determination has flagged a concern with clause 21.4 of the Exposure Draft:

‘21.4 Payment for overtime—casual employees

Each hour worked in excess of 12 hours per engagement, 12 hour in a single day or 304 ordinary hours over an eight week period will be paid at a rate of 175% of the employee’s ordinary hourly rate for his or her classification (inclusive of the casual loading).’

[12] As a result of the insertion of the annualised wage arrangements at clause 17, this clause (previously clause 20.4) has become clause 21.4. Further, clause 21.4 uses the term ‘employee’s ordinary hourly rate’, whereas the previous clause 20.4 had used ‘employee’s minimum hourly wage’. These changes appear to have been the result of the Full Bench’s consideration of the public holiday rates for casual employees in the Decision dated 27 April 2020:

‘[191] Clause 26.4 states: 26.4 Public holiday rates—casual employees All hours worked by a casual employee on a public holiday (both ordinary hours and any overtime) will be paid at a rate of 225% of the employee’s minimum hourly wage for his or her classification (inclusive of the casual loading).

[192] The AWU submitted that ‘for consistency within this award and with other exposure drafts the reference to the ‘minimum hourly wage’ should be amended to ‘ordinary hourly rate’. We also note that the same issue may arise in clause 20.4.

[193] At [163] of the Tranche 3 BP we invited interested parties to comment on the AWU’s proposed amendment. ABI and Ai Group do not oppose the AWU’s proposal. We agree and will amend the Exposure Draft and variation determination accordingly. We note that due to the insertion of the annualised wage arrangements provision at clause 17, clause 26.4 has been renumbered as 27.4.’ (my emphasis)

[13] The nature of the NFF’s concern is that if clause 21.4 adopts the language of ‘ordinary hourly rate’ rather than ‘minimum hourly wage’, which was in the Exposure Draft published on 29 January 2020 at clause 20.4 and is in the current Award at clause 25.3, overtime payments for casual employees will be calculated on a rate which is inclusive of the all-purpose allowance and this would a very significant change for the horticulture industry.’ 76

[126] The Report to the Full Bench noted that the NFF were to file further correspondence regarding their concerns. The NFF filed a submission 77 on 7 July 2020 contending that ‘…whether or not overtime which is currently payable (i.e. under the drafting in the Current Award) should be calculated on a rate which is inclusive of the all-purpose allowance is ambiguous’.78

[127] The NFF made the following submissions:

‘As to whether the overtime rate is currently ‘inclusive’ we make the following observations:

(a) The language of the casual overtime provisions of the Current Award expressly links the rate on which overtime is calculated to the amount set out in clause 14 by employing the language (“minimum weekly wage”) used in (both the text and tables) of that clause 14 without picking-up the all purpose allowance.

(b) That expression “minimum weekly wage” is nested in the language used to determine the amount of some of the all purpose allowances — for example, the leading hand allowance is a percentage of the “standard rate”, and the “standard rate” is defined to mean “the minimum hourly wage for a Level 2” — so if “minimum hourly wage” had the same meaning as “ordinary hourly rate” it would result in a circular reasoning.

(c) The Fair Work Ombudsman’s position is that, according to the current drafting, casual overtime is calculated based on an exclusive approach, and that approach is consistent with the understanding of a significant proportion of growers.

(d) We are informed that the ‘overtime for casuals’ provisions in the Horticulture Award have resulted in significant increases in the sector’s labour costs, a fact which is having impacts not just on its bottom line but also upon its capacity to employ. Language which leads to an inclusive approach may therefore have consequences for both employers and employees in the sector. We estimate at least $1000 per annum for many producers.

That said, we do not take issue with the notion that if the ‘inclusive’ interpretation of the current provision is correct then the proposed language is appropriate and desirable so that the position is beyond doubt. However, if the ‘exclusive’ approach is correct then it is our contention that the proposed change of language will constitute a substantive change to existing pay arrangements.’ 79

[128] The NFF noted the decision of the Full Bench in [2017] FWCFB 5536, where the issue of whether the all-purpose allowances under the Horticulture Award were to be included before the calculation of the 25% casual loading. In that decision, the Full Bench made the observation that:

‘[we] do not propose to depart from the ‘general approach’. The term ‘ordinary hourly rate’ in clause 6.5(c)(i) of the exposure draft will remain such that any allowances described as payable for all purposes will operate on a ‘truly all purpose basis’.’ 80

[129] The NFF submitted that this decision and others cited were all made before the current casual overtime provisions were adopted into the current award on 2 April 2019, submitting that:

‘As such, the current language of the overtime provisions may be interrupted as using the expression “minimum hourly rate” with an awareness of those determinations and in light of the principles they express/adopt. That is, if the ‘inclusive’ approach was intended then the language “ordinary hourly rate” would have been used. As such, the choice of the “minimum hourly rate” language means that the ‘exclusive’ approach applies (although we again stress and acknowledge that to our recollection this issue was never actually raised during the discussion about that language).’ 81

[130] The AWU filed a submission in reply on 8 July 2020 82 which it submitted that it ‘…does not accept there is any ambiguity in relation to the application of all purpose allowances under the current Horticulture Award’,83

‘The term “all purposes” has a well understood industrial meaning – the precise purpose of the term is to require that the relevant allowances are included when penalty rates and loadings are calculated. That position has been repeatedly confirmed by the Commission during the 4-yearly review process.

…

The AWU does not consider it is appropriate for an issue that has already been extensively considered and resolved during the 4-yearly review process to be reagitated at this stage and does not consider any changes to the exposure draft are required.’ 84

[131] The interaction of all-purpose allowances and casual rates has been dealt with extensively throughout the Review. The Full Bench in [2015] FWCFB 6656 said:

‘The general approach will remain as expressed in the exposure drafts, namely that the casual loading will be expressed as 25% of the ordinary hourly rate in the case of awards which contain any all purpose allowances, and will be expressed as 25% of the minimum hourly rate in awards which do not contain any such allowances.’ 85

[132] Further, as we have noted, the Full Bench in [2017] FWCFB 5536 confirmed, in respect of the Horticulture Award specifically, that it did not propose to depart from this general approach.

[133] We see no basis to depart from their view and the terms of clause 21.4 as set out in the variation determination published 8 May 2020 will remain.

[134] One further change to the variation determination requires explanation. Clause 13 of the exposure draft deals with ordinary hours of work and rostering arrangements. In a Report to the Full Bench dated June 2016 the clause title was amended to read ‘Ordinary hours of work and rostering arrangements (day workers)’. This change was made as the clause dealt with the ordinary hours of work for day workers only.

[135] The Full Bench constituted to deal with the technical and drafting issues in Group 3 awards moved the ordinary hours of work for a shiftworker clause from the ‘Penalties and overtime’ clause into the ‘Ordinary hours of work and rostering (day workers)’ clause. 86 Therefore the words ‘(day workers)’ are no longer relevant to the clause content and have been deleted.

Telecommunications Services Award 2010

[136] The April 2020 decision noted that a conference would be convened to address outstanding issues in the Telecommunications Award, in particular:

•  Clause 2 – definitions – ordinary hourly rate;

•  Clause B.2.4 – Full-time and part-time employees – overtime;

•  Schedule B – certain classifications exempt from various entitlement. 87

[137] The April 2020 decision set out the issue in relation to clause 2 as follows:

‘[377] The definition of ‘ordinary hourly rate’ states:

ordinary hourly rate means the hourly rate for the employee’s classification specified in clause 15.1, plus any allowances specified as being included in the employee’s ordinary hourly rate or payable for all purposes.

[378] Ai Group submitted that the definition is ‘problematic’ as it requires the calculation of the ordinary hourly rate by reference to the rates contained in clause 15.1 which excludes employees who are not entitled to those rates, such as employees to whom clause 15.2 applies (junior employees) and clause 15.3 applies (apprentices).’

[138] Ai Group proposed that the words ‘clause 15.1’ should be replaced with ‘this award’. ABI supported Ai Group’s proposed amendment. The CPSU contended that the reference should be to clause 15 generally.

[139] The April 2020 decision set out the issue in relation to clause B.2.4 as follows:

‘[383] The rates at B.2.3 apply to full-time and part-time employees who are not performing shiftwork when working overtime.

[384] The rates at B.2.4 are headed ‘full-time and part-time employees – overtime’ yet the rates set out therein appear to be the same as the rates at B.2.3. Ai Group submitted that the distinction between the two sets of rates is not clear and suggests that B.2.4 is deleted.

[385] At [327] of the Tranche 3 BP we noted that the issue raised may also be resolved by amending the heading of B.2.4 to read ‘Full time and part time employees – shiftworkers – overtime rates’ and invited interested parties to comment on this issue.

[386] Ai Group did not oppose the Commission’s proposed course of action.

[387] ABI submits that the issue identified should be rectified in the manner suggested by the Commission and notes that the rates in B.2.4 contain different public holidays rates from those in B.2.3. ABI submits that the purpose of the footnote in question is primarily to explain the absence of particular rates that would not have applied to certain classifications due to exclusions arising out of the former clause 17.

[388] The CPSU submits that whether B.2.3 or B.2.4 is removed, the name of the table that remains should be ‘full and part time employees – overtime’

‘this is because there is not a need to distinguish shiftworkers from workers other than shiftworkers as they have a similar entitlement to overtime.’’

[140] The issue in relation to Schedule B was also set out in the April 2020 decision as follows:

‘[389] Ai Group refers to footnote 1 to each of the table of rates set out in Schedule B. Footnote 1 applies to certain classifications and says:

‘See clause 17 – Annual salary arrangements for higher classifications in relation to award provisions that do not apply to persons in these classifications.’

[390] While under the annualised salary clause that previously applied, certain employees were exempted in all circumstances from certain award entitlements, Ai Group contends that as a consequence of the introduction of new annualised wage arrangements (effective 1 March 2020), this will no longer be the case.

[391] Ai Group submitted that the relevant tables and footnotes require revisiting in light of the new annualised salary clause.

[392] At [332] of the Tranche 3 of the BP we agreed with Ai Group’s submission but noted that it may be sufficient to simply amend the footnote, as follows:

‘An employer may pay a full-time employee employed in a particular classification, an annualised wage in satisfaction of any or all of the award provisions listed in clause 15.’

[394] The CPSU agrees with the proposal put by the Commission to amend the footnote.

[395] Ai Group supports the variation made to the footnote but suggests that it remains necessary to revisit the rates included in the tables for the following classifications:

•  Principal Customer Contact Leader;

•  Telecommunications Associate; or

•  Clerical and Administration Level 5.

[396] Ai Group notes that many of the rates for the above classifications were left blank on account of the fact that the former annualised salary clause functioned as an exemption from payment of certain overtime and penalty rates. As the current annualised wage arrangement provision merely allows for these entitlements to be substituted by way of an annualised salary, Ai Group submits that it is necessary for overtime and penalty rates for these classifications to be included in Schedule B.

[397] ABI supports the revised footnote proposed by the Commission but submits that further variations will be required to the rates tables as the annualised salary provisions no longer automatically exempt certain classifications from the rates in question. ABI proposes that these rates should be calculated and added to the relevant tables in Schedule B.’

[141] A conference was held on 29 May 2020 at which the above issues were addressed and resolved.

[142] On 2 June 2020 Commissioner Bissett issued a Report to the Full Bench outlining the agreements reached between the parties at the conference.

[143] In a Statement 88 issued on 4 June 2020 we expressed the provisional view that the Telecommunications Award should be varied as set out at paragraphs [4] - [8] of the Report to the Full Bench. We invited submissions in response to our provisional view and stated that if no submissions were received we would issue a final variation determination giving effect to our provisional view.

[144] No submissions were received, and in accordance with the Statement issued on 4 June 2020 the variation determination has been amended as set out above.

Timber Industry Award 2010

[145] The April 2020 decision noted that a conference would be convened to deal with an outstanding issued in relation to the Timber Award. A draft variation determination was published on 8 May 2020 and Commissioner Bissett convened a conference of the parties on 4 June 2020.

[146] On 5 June 2020, Commissioner Bisset issued a Report to the Full Bench which set out the outcomes of a conference. The Report notes there were three outstanding issues.

Clause 16 - Classifications

[147] The Report to the Full Bench notes that clause 16 currently reads:

‘The definitions of the classification levels in clause 20—Minimum, are contained in Schedule A—Classification Definitions —General Timber Stream, Schedule B— Classification Definitions—Wood and Timber Furniture Stream and Schedule C— Classification Definitions —Pulp and Paper Stream.’

[148] The Report to the Full Bench states that all parties agreed that the word ‘Rates’ should be inserted after the word ‘Minimum’.

[149] In a Statement 89 issued 10 June 2020 we stated that we proposed to give effect to the matters agreed at conference. No contrary submissions were received and in accordance with the Statement issued on 10 June 2020 the variation determination has been amended as set out above.

Clause 20.4(a)(ii) – Adult apprentices

[150] The Report to the Full Bench notes that the April 2020 decision at [473] confirmed the provisional view that the heading in the second column of clause 20.4(a)(ii) was to be corrected to:

‘% of Level 5 minimum weekly wage’.

[151] The draft variation determination published 8 May 2020 was amended, but instead of the word ‘wage’, the word ‘rate’ was used as follows:

‘% of level 5 minimum weekly rate’

[152] The Report to the Full Bench states that on consideration of the matter, the parties agreed that the heading should be as included in the draft variation determination and not as expressed by the Full Bench in the April 2020 decision at [473].

[153] In a Statement 90 issued 10 June 2020 we stated that we proposed to give effect to the matters agreed at conference. No contrary submissions were received and in accordance with the Statement issued on 10 June 2020 the variation determination will remain as set out above.

Public holiday penalty rate for casual employees

[154] At paragraph [11], the Report to the Full Bench identified an issue raised in the April 2020 decision about penalty rates and casual employees as follows:

‘[438] In clause D.3, parties were asked whether the public holiday penalty rate for casual workers should be limited to the General Timber Stream.

[439] ABI submitted that, based on the current wording of the Exposure Draft, casual employees are not entitled to public holiday loadings, unless they are in the General Timber Stream:

‘78. This is because, clause 27.1(d) prescribes the public holiday penalty for casual employees. This clause is clearly limited to employees in the General Timber Stream.

79. Clause 27.1(c) also prescribes a public holiday penalty, but it expressly limited to weekly employees and so does not apply to casual employees, whether in the General Timber Stream or not.

80. Further to this, the Saturday and Sunday payments prescribed in clauses 27.1(a) and (b), are also expressly limited to weekly employees and do not apply to casual employees.

81. The Saturday and Sunday rates in the table at clause D.3.1 should be amended to reflect this.’

[440] At [370] of the Tranche 3 BP we invited interested parties to comment on the issue raised by ABI and the solution proposed.

[441] HIA agreed with ABI’s comments and submits that clause D.3.1 should be amended to provide public holiday rates only for casual employees in the General Timber Stream and remove the Saturday and Sunday rates currently specified.

[442] The CFMMEU – MD oppose ABI’s submission:

‘We note at the outset that there is no actual definition of ‘weekly employees’ in the Timber Award 2010. However, even on the assumption that the expression ‘weekly employees’ was intended to exclude casual employee, we submit that this does definitively determine the respective issues.

Clause 12.2 (Casual employment) of the Timber Award provides as follows:

12.2 Casual employment

(a) A casual employee will be paid per hour 1/38th of the award rate applicable for the work performed plus a loading of 25% of the applicable rate of pay.

(b) A casual employee who works in excess of the ordinary hours fixed for weekly employees on any day will be paid at the appropriate overtime rate provided in clause 30 – Overtime, Saturday, Sunday and public holiday payments-day work an shiftwork based on their ordinary rate of pay (including the loading provided for in clause 12.2(a). [added emphasis]

(c) A casual employee engaged for any part of any day will be entitled to a minimum of fours hours’ pay per day whether the casual employee is required to work for four hours or not.

Clause 12.2 of the Timber Award is silent as to whether casual employees are (generally) excluded from an entitlement to penalty payments on public holidays and for work undertaken on Saturdays and Sunday.

It is the case that employees in the General Timber Stream expressly have an entitlement to public holiday penalty rates (see clause 30.7(b) of the Timber Award or clause 27.1(c) of the Exposure Draft). However, arguably, clause 30.7(b) is intended to carve out a different regime of penalty payments for casual employees in the General Timber Stream (reflecting the position in the pre-modern award) rather than operating to the effect that casual employees in the other two streams (i) Wood and Timber Stream; and (ii) Pulp and Paper Stream, have no entitlement to public holiday penalty rates.

Further, clause 12.2 of the Timber Award therefore expressly provides a casual employee an entitlement to overtime rates (as set out in clause 30) for all work undertaken on any day in excess ‘of the ordinary hours fixed for weekly employees’.

Clause 30.1 (Payment for working overtime) of the Timber Award provides a general entitlement for all employees (including casuals) working overtime in relation to ordinary hours, expressed as follows (in part):

30.1 Payment for working overtime

(a) All time worked by employees outside of the spread of hours prescribed in clause 27 – Hours of work or in excess of the ordinary daily number of hours prescribed in clause 27, will be paid for at the rate of time and a half for first two hours and double time thereafter.

(b) In computing overtime each day’s work will stand alone.

(c) For the purpose of this clause ordinary hours will mean the hours fixed in an establishment in accordance with 27 – Hours of Work.

Clause 27.2 makes provision for ordinary hours of all employees, by agreement, to be worked on any day of the week, including Saturday and Sunday inclusive. This applies to both day workers (27.2(b)) and shiftworkers (27.3(b)).

As such, if a casual employee’s ordinary hours include hours on a Saturday or Sunday, and they work additional hours on that day, we submit, at a minimum, they would be entitled to overtime payments of time and half for the first two hours, and double time thereafter for such additional hours.’

[155] On 10 June 2020, we issued a Statement 91 inviting employer parties and/or any party generally supporting the views expressed at [439]-[440] of the April 2020 decision to file written submissions on the issue identified by Wednesday, 17 June 2020. Any party opposing the views expressed in the April 2020 decision were to file written submissions by no later than 4.00pm Wednesday, 24 June 2020.

[156] Submissions were received from the following parties:

•  HIA – 17 June 2020 (incorrectly dated 17 April 2020)

•  ABI – 19 June 2020

•  CFMMEU – 26 June 2020 (in response to HIA and ABI submissions)

[157] HIA confirmed their views as expressed in correspondence dated 7 April 2020 92 and stated that it agreed with ABI’s comments as outlined in the 10 June 2020 Statement.

[158] HIA submits that clause D.3.1 should be amended to provide public holiday rates only for casual workers in the General Timber Stream and remove Saturday and Sunday rates as currently specified.

[159] HIA further submits that for the sake of absolute clarity and to assist the modern award reader, the table at Clause D.3.1 should provide a note specifying ordinary rates also apply for the purposes of Saturday and Sunday work.

[160] ABI confirmed their views as expressed at paragraph 76 of submissions dated 6 March 2020 93 and set out in the April 2020 decision as follows:

‘[439] ABI submitted that, based on the current wording of the Exposure Draft, casual employees are not entitled to public holiday loadings, unless they are in the General Timber Stream:

78. This is because, clause 27.1(d) prescribes the public holiday penalty for casual employees. This clause is clearly limited to employees in the General Timber Stream.

79. Clause 27.1(c) also prescribes a public holiday penalty, but it expressly limited to weekly employees and so does not apply to casual employees, whether in the General Timber Stream or not.

80. Further to this, the Saturday and Sunday payments prescribed in clauses 27.1(a) and (b), are also expressly limited to weekly employees and do not apply to casual employees.

81. The Saturday and Sunday rates in the table at clause D.3.1 should be amended to reflect this.’ 94

[161] ABI submits that:

‘4. This view is consistent with the submission of the CFMEU in 2009 which sought an entitlement to the public holiday loading for General Timber Stream casual employees only. 95 That submission was consistent with the position that there was no entitlement for public holiday loading for any casual employees at that date.

5. ABI agrees with the characterisation of its argument as expressed in the Statement but would like to clarify how the table at D.3.1 should be amended.

6. The table at D.3.1 of the Exposure Draft should be amended by:

(a) Splitting the General Timber Stream and Wood and Timber Furniture Steam into separate sections of the table;

(b) Continuing to provide a public holiday rate for the General Timber Stream (which is 275%);

(c) Removing public holidays rates for the Wood and Timber Furniture Stream and the Pulp and Paper Stream;

(d) Removing the Saturday and Sunday rates for all casual employees regardless of the stream.’

[162] In its reply submission of 26 June 2020, the CFMMEU oppposes the submissions of HIA and Ai Group and further states that it relies on its previous submissions filed on 9 April 2020. 96

[163] The CFMMEU submits that ‘…all casual workers covered by the Timber Award are entitled to the public holiday rate under the current Timber Award and that such entitlement should be accurately reflected in the Timber Award ED’. 97

[164] Specifically in relation to whether the public holiday rate for casual workers should be limited to the General Stream, the CFMMEU submits:

‘14. The ABI in its submission (19 June 2020) refer to the submissions of the CFMEU-FFPD (16 December 2009) as part of an application under section 576H of the Workplace Relations Act 1996. (‘CFMEU submission – 2009’). The submissions were in support of a variation to insert into the modern Timber Industry Award 2010 (prior to its commencement on 1/1/2010), a new clause 30.7(b) ‘Payment for casual workers working on public holidays – General Timber Stream.’ The terms of clause 30.7(b) which was ultimately inserted into the award is an identical formulation to that which currently exists at clause 30.7(b) of the Timber Award.

15. ABI submits that the CFMEU submission [in Dec 2009] ‘was consistent with the position that there was no entitlement for public holiday loading for any casual employees at that date.’ In our view, this inference drawn by ABI mischaracterises the CFMEU submission.

16. It is evident from the CFMEU submission 2009, that the objective of the CFMEU was to reflect expressly in the new modern Timber Award, the terms of the pre-existing entitlement to public holiday loadings for casual employees in the General Timber Steam. That is, effectively, the same entitlement which had existed in the pre-reform Timber and Allied Industries Award 1999 and similar clauses in various NAPSA’s. The entitlement makes clear that for employees in the General Stream, they receive a loaded penalty rate for public holiday work.

17. It is not reasonable to definitively conclude (as the ABI has done) that the fact of the CFMEU-FFPD’s proposed variation in December 2009 meant ‘that there was no entitlement of public holiday loading for any casual employee at that date.’ The CFMEU submission does not submit or concede this was the case.

18. As submitted previously, clause 12.2 (Casual employment) of the Timber Award does not expressly exclude casual employees from the public holiday loading in clause 30 and is otherwise silent (generally) about this issue.’

[165] In relation to the proposals to alter the tables at D.3.1, the CFMMEU submits that:

‘20. In its submissions (17 June 2020) HIA suggests, for the sake of clarity, ‘that the table at clause D.3.1 provide a note specifying ordinary rates also apply for the purposes of Saturday and Sunday work [for casual employees]. In its submissions, ABI (19 June 2020) propose ‘removing the Saturday and Sunday rates for all casual employees regardless of the stream.’

21. We oppose the proposals of the HIA and ABI, as it will infer that casual employees are only entitled to their ordinary rate of pay if they undertake work on Saturday or Sunday. In context of the other relevant provisions of the Timber Award this is incorrect and would have the potential to mislead readers regarding their rights and obligations.

22. The hours of work for employees are prescribed by clause 27.2 and 27.3 of the Timber Award [clause 17. 1 – 17.4 of the Timber Award ED]. The default ordinary hours of work for day workers are an average of 38 hours per week and will be worked between the hours of 6.30am and 6.00pm Monday to Friday. Therefore, if a casual employee (day worker) was to undertake work on a Saturday or Sunday these hours would be outside their ordinary hours or work and would attract overtime penalties.

23. Under clause 12.4 of the Timber Award ED, a casual day worker would be entitled to the following penalty:

12.4 A casual employee who works in excess of the ordinary hours fixed for day workers in clause 17.2 will be paid at the appropriate overtime rate provided in clause 26 – Overtime based on their ordinary rate of pay (including the loading provided for in clause 12.3)

24. Therefore, a casual day worker undertaking work on a Saturday or Sunday, would be entitled to an overtime rate calculated (on a casual loaded rate) as follows:

Saturday

•  1.5 for the first 2 hours

•  2.0 for all time after that

Sunday

•  2.0 for all time worked

25. We note that clause 27.2 of the Timber Award [clause 17.2 of the Timber Award ED] provides that (for day workers and shift workers):

‘Where agreement exists the ordinary hours of work can be worked on any day of the week, Saturday and Sunday inclusive.’

26. Even where agreement exists under 17.2 and a casual employee’s ordinary hours include a Saturday or Sunday, all hours worked in addition to those ordinary hours would attract an overtime penalty’.

[166] We agree with the submissions of ABI and HIA that the public holiday penalty rate for casual dayworkers in clause 27.1(d) of the exposure draft is expressly limited to the general timber stream.

[167] We also agree with the submission of ABI and HIA that under the current terms of the award (and subsequently, the exposure draft) casual dayworkers are not entitled to a penalty rate for working on a Saturday or Sunday. The Saturday and Sunday payments prescribed in clauses 27.1(a) and (b) of the exposure draft, are expressly limited to ‘weekly’ employees. However, it is clear that casual dayworkers are entitled to an overtime payment under clause 12.4 of the exposure draft. This is canvassed in detail in the CFMMEU’s submissions outlined at [166] above. We agree with the CFMMEU in this respect.

[168] The table at clause D.3.1 will be amended to provide public holiday rates (at 275% of the ordinary hourly rate) for casual dayworkers in the general timber stream only. The entitlement to Saturday and Sunday rates for all casual dayworkers will be removed. Rather, the table will set out the overtime rates for casual dayworkers. A note will be included in the table to outline that casual dayworkers may work ordinary hours on a Saturday and Sunday by agreement, in accordance with clause 17.2.

Wine Industry Award 2010

[169] The April 2020 decision stated that a conference would be convened to discuss any outstanding matters in the Wine Industry Award. 98

[170] A conference was held on 2 June 2020 whereby the only outstanding matter identified was in relation to clause 22.1(c) in respect of overtime for casuals.

[171] As outlined in the April 2020 decision, the SA Wine Industry Association submitted in relation to clause 22.(1)(c) that:

‘The wording in the exposure clause is tighter than in the existing clause, which reads that overtime would apply to any hours worked outside of day work hours. This could be incorrectly interpreted to mean that any hours, including shiftwork ordinary hours, would attract overtime rates. Remove ‘in clause 13.6’. This would allow for shift work and associated shift penalty rates to be paid.’ 99

[172] The April 2020 decision set out the relevant clauses as follows:

‘[542] Clause 22.1(c) provides:

(c) A casual employee must be paid overtime rates in accordance with clause 22.2—Overtime rates for all time worked:

(i) outside of the spread of ordinary hours in clause 13.6; and/or

(ii) in excess of 38 ordinary hours per week; and/or

(iii) in excess of the ordinary hours provided for in clause 13—Ordinary hours of work and rostering.

[543] The comparable provision in the current award is clause 13.4(a) which states:

13.4 Overtime

(a) A casual employee must be paid overtime rates in accordance with clause 30—Overtime and penalty rates for all time worked:

(i) outside of the spread of ordinary hours; and/or

(ii) in excess of 38 ordinary hours per week; and/or

(iii) in excess of the ordinary hours provided for in clause 28—Ordinary hours of work and rostering.’

[173] The April 2020 decision indicated that the United Workers’ Union (UWU) objected to the proposed amendment sought by the Association. 100

[174] On 3 June 2020 Commissioner Bissett issued a Report to the Full Bench which stated that at the conference the UWU withdrew its objection to the proposed amendment. It also stated, at paragraph [7], that it was agreed that the words ‘in clause 13.6’ should be deleted from clause 22.1(c).

[175] In a Statement 101 issued on 4 June 2020 we expressed the provisional view that the Wine Industry Award should be varied as set out in at paragraph [7] of the Report to the Full Bench. We invited submissions in response to our provisional view and noted that if no submissions were received, we would issue a final variation determination giving effect to our provisional view.

[176] No submissions were received and, in accordance with the Statement issued on 4 June 2020, the variation determination has been amended as set out above.

5. Next steps

5.1 The Category 2 and 3 Awards

[177] As mentioned earlier, in the January 2020 Decision we expressed the provisional view that the variation of the Tranche 3 modern awards in accordance with the draft variation determinations set out at Attachment C of that decision was, in respect of each of these awards, necessary to achieve the modern awards objective. In reaching that conclusion, we adopted the reasons set out in the decisions at Attachment B to the January 2020 Decision, in so far as they were relevant to each of the Tranche 3 modern awards and, in particular, to the considerations in ss 134(1)(a) to (h), which are addressed in each of those decisions.

[178] We confirm our provisional view in respect of the category 2 and category 3 modern awards. Save for the Food Manufacturing Award and the Graphic Arts Award, variation determinations will be issued on 7 October 2020 for the modern awards in category 2 and category 3 in the terms previously published subject to the amendments necessary to give effect to all of the matters canvassed in this decision. The variation determinations will commence operation on 13 November 2020.

[179] Interested parties will have until 4pm on Friday 16 October 2020 to file an objection to any of the amendments outlined in this decision. All objections must be sent electronically to [email protected] and [email protected]. This process is intended to provide an opportunity to correct any errors; it is not an opportunity to relitigate the issues which have already been determined.

[180] Revised variation determinations in respect of the Food Manufacturing and Graphic Arts awards will be published after the determinations in AM2017/51 have been finalised.

[181] A further conference will be convened in relation to the Textile Award after the Full Bench in AM2017/51 has determined the outstanding issues in respect of this award.

[182] The Registered Clubs Award will be finalised once the outstanding claims in that matter have been determined.

5.2 The Category 4 Awards

Category 4

[183] The awards in this category (collectively, the Construction Awards) are as follows:

•  Building and Construction (General) On-Site Award 2010

•  Joinery and Building Trades Award 2010

•  Mobile Crane Hiring Award 2010

•  Plumbing and Fire Sprinklers Award 2010

[184] A Statement and directions will be issued shortly in relation to the finalisation of the Exposure Drafts and draft variation determinations in respect of the Construction Awards.

5.3 The Category 5 Awards

[185] We granted the IEU and AIS an extension in respect of the filing of submissions in relation to the Educational Services (Teachers) Award 2010. The variation determination in respect of this award was finalised in a decision published on 10 September 2020. 102

[186] The General Retail Award was finalised in a decision issued on 10 September 2020. 103 A final determination104 was issued and the General Retail Industry Award 2020 will come into operation on 1 October 2020.

[187] The issues in respect of the Black Coal Mining Industry Award 2010 will be determined in accordance with the directions set out in a Statement published on 12 March 2020. 105

[188] In relation to the Nurses Award 2010 (Nurses Award), Ai Group and the ANMF filed a joint note on 22 May 2020 indicating the terms of the Exposure Draft and draft variation determination which are related to proceedings in AM2020/1. The joint note identified 6 clauses which were related to AM2020/1. A revised Exposure Draft and draft variation determination will be published for the Nurses Award shortly. Any clause that is the subject of AM2020/1 will appear in the revised exposure draft as it appears in the current Nurses Award. Parties will be provided an opportunity to make comment in relation to those aspects of the revised Exposure Draft and draft variation determination which are unrelated to AM2020/1. A final variation determination for the Nurses Award will then be issued.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR723298>

ATTACHMENT A– Awards in Tranche 3

 1   [2019] FWCFB 6077.

 2   [2020] FWCFB 421.

 3   [2020] FWCFB 1539

 4   The submissions relate to 34 of the Tranche 3 awards; the 4 construction sector awards are being dealt with separately

 5   [2020] FWCFB 2124.

6   Aircraft Cabin Crew Award 2010; Amusement, Events and Recreation Award 2010; Business Equipment Award 2010; Dredging Industry Award 2010; Health Professionals and Support Services Award 2010; Horse and Greyhound Training Award 2010; Journalists Published Media Award 2010; Marine Tourism and Charter Vessels Award 2010; Marine Towage Award 2010; Miscellaneous Award 2010; Pest Control Industry Award 2010; Ports, Harbours and Enclosed Vessels Award 2010; Professionals Employees Award 2010; Seagoing Industry Award 2010; Security Services Industry Award 2010; Sugar Industry Award 2010; Supported Employment Services Award 2010.

 7   [2020] FWCFB 1837.

 8   [2020] FWCFB 4986

 9   [2020] FWCFB 5028

 10   [2020] FWCFB 5137

 11   [2020] FWCFB 3500.

 12   [2020] FWCFB 3500 at [23].

 13   [2020] FWCFB 3500 at [161].

 14   [2020] FWCFB 3500 at [161].

 15   Reference to ‘clause 39’in clause 7.2 changed to ‘clause 39.3’; classifications in clauses 13.2(d)-(e),(h),(k), (n) and (o) have been reordered; weekly rates in clause 13.4 rounded to the nearest cent to accord with FWC rounding principles, reference to ‘clause 14.13’ in clause 13.5(b) changed to ‘clause 13.4’; reference to ‘clause 15A’ in the note appearing in clause 17.3 changed to ‘clause 17’; reference to ‘clause 23.9’ in clause 18.11 changed to ‘clause 18.11’; reference to ‘clause 25’ in clause 29.6(d) changed to ‘clause 25—Consultation about changes to rosters or hours of work’; reference to ‘clause 32.2’ in clause 32.2(d) changed to ‘clauses 32.2(a) and 32.2(b)’; the words ‘the transfer’ inserted to the beginning of clause 54.3(b); reference to ‘clause 54’ in clause 54.4 changed to ‘clause 54.3’; table heading of ‘$ per cinema’ in clause 62.2(a)(i) changed to ‘$ per week’; clause 62.2(a)(ii) reformatted; reference to ‘clause 66.3’ in clause 66.3(a)(ii) changed to ‘clause 66.3(a)(ii)’; ‘per week’ inserted into the payable column in the table in clause H.3.1 for ‘Zone manager’s additional cinema supervision allowance—zone 1—per cinema’ and ‘Zone manager’s additional cinema supervision allowance—zone 2—per cinema’; and rows inserted into table in clause H.3.1 setting out meal allowances provided by clause 67.

 16   The word ‘clause’ replaced with the word ‘clauses’ in clause 13.8(d)(i) and13.8(d)(v).

 17   The words ‘time off instead of overtime’ amended in clause 7.2 to read ‘time off instead of payment for overtime.

 18   The words ‘six’ and ‘four’ amended to numerals ‘6’ and ‘4’ in clause 10.8; Reference in clause 12.1(b) to ‘clause 7.3’ has been amended to ‘clauses 7.3 and 7.4’; Reference in clause 13.5(d) to ‘clauses 13.5(b), 13.5(c) and 13.5(d)’ has been amended to ‘clauses 13.5(b), 13.5(c), 13.5(d) and 13.5(e)’; the words ‘one and a half’ amended to numeral ‘1.5’ in clause 23.9; Reference in clause 25.12 to ‘clause 25.4’ amended to ‘clauses 25.4 and 25.6’; Table heading appearing in clause E.4.1(d)(ii) amended to ‘Table 4—Minimum weekly rate for full-time adult trainees (AQF Certificate Level IV traineeship)’; Reference in clause E.4.2(c) to ‘clause E.6.2’ amended to ‘clause E.6.3’; the word ‘this’ has been deleted after the words ‘clause E.4.2(d)’ and ‘clause E.4.2(e)’ at clauses E.4.2(d) and E.4.2(e).

 19   Table appearing in clause 7.2 has been amended to read ‘An individual or the majority of employees’ not ‘An individual or the majority of employers’; Table appearing in clause 7.2 has been amended to read ‘Any or all of the employees’; Reference in clause 19.3 to ‘clause 20.6’ has been changed to refer to ‘clauses 20.6 or 20.7’; Reference in clause 19.6 to ‘clause 10.5 and 11.3’ has been changed to refer to ‘clauses 10.5 and 11.3; inserted the word ‘at’ at clauses 20.6(a), 20.6(b), 20.7(a), 20.7(b), 21.1(a)(i) and 21.1(b); Schedule X deleted as schedule does not operate past 30 September 2020.

 20   The word ‘and’ deleted before the words ‘the shift allowances prescribed in’ in clause 13.6(e)(iii); the word ‘twelve’ has been amended to the numeral ‘12’ in clause 13.8(f); clause 17.4 inserted, moving the ‘Higher duties’ clause; reference to ‘clause 18’ amended to ‘clause 37’ in clause 23.1 and a space inserted; reference to ‘Schedule B’ amended to ‘Schedule A’ in clause 23.3(a) and 23.3(c); reference to ‘clauses 13.3(a)(iii), 13.4(b)(iii), 13.5(b)(iii), 13.6(a)(ii) and 13.7(b)’ amended to ‘13.(a)(iii), 13.4(a)(ii), 13.5(b)(iii) 13.6(a)(ii) and 13.7(b)’ in clause 36.6(c); words ‘OH & S’ amended to ‘work health and safety’ in clause A.5.

 21   Reference to clause ‘14.1’ amended to ‘clause 14.1(a)’ in clause 7.2; the words ‘dayworkers’ removed from the title of clause 13 as the clause now refers to day workers and shiftworkers; the word ‘eight’ has been amended to numeral ‘8’ in clause 13.2; reference to ‘clause 13—Ordinary hours of work and rostering’ amended to ‘clause 13—Ordinary hours of work and rostering arrangements’ in clause15.2(e)(i).

 22   The table appearing at clause 7.2 has been amended to include clauses 32.1(a)(vii) ‘ordinary hours of work and rostering – Performers – timing of lay off’; 40.2(f)(vi) has been removed from table at clause 7.2; changes to terminology in clauses 29 and 30, 34 and 35 to ensure consistency in terms; typographical error at 60.1(g)(i) corrected; cross reference in Schedule B.2 updated

 23   Typographical errors have been amended in clause 2 and 10.6; clause 10.9 has been amended by referring to a numerical 8 and deleting the word ‘eight’; the phrase ‘in accordance with clause 11.5’ appearing at clause 12.4 and 12.5 amended to appear as a footnote; the reference to clause 12.10(g)(i) in ‘clause 12.10’ has been changed to refer to ‘clause 12.10(b)’; inconsistent capitalisation of classification names corrected at clauses 13.2, 13.3, 13.4, 13.6, 13.7, 13.8 and 13.9; Reference to clause 23.8(a) in ‘clause 23.8(a)’ has been changed to refer to ‘clause 23.6(b)’; clause 28.3 has been amended to include the title of clause 12; amendment made to B.1.1, B.2.1, B.2.2(b) re-categorisation of loss of clothing allowance from wage allowance to an expense related allowance; Schedule X deleted as schedule does not operate past 30 September 2020.

 24   Typographical error has been corrected in clause 2; incorrect cross references appearing in clause 7.3(a) have been amended to read ‘clause 7.3’ and ‘clause 7.2’; incorrect cross reference appearing in clause 7.3(c) has been amended to read ‘clause 7.2’; incorrect cross reference at clause 7.4 has been amended to read ‘clause 7.2’; incorrect cross reference at clause 14.1 has been amended to rad ‘clause 14.3’; incorrect cross reference in clause 14.2 has been amended to read ‘clause 14.3’; word ‘lunch break’ in clause 19.1(a) has been amended to read /meal break’ for consistency of terminology throughout the award; the NOTE in clauses 22.1 and 23.1 have been amended to refer to the correct title of Schedule E; reference in clause 27.2(b)(i) to ‘clause 34.2’ has been amended to refer to clauses 34.1 and 34.2.

 25   The titles of ‘Note 2’ and Note 3’ in clause 6.1 amended due to incorrect numbering; the word ‘four’ has been changed to the numeral ‘4’ wherever it appears in clause 11.4(d); clause 14.2(a) has been amended to remove the reference to 4 � and insert 4.5 hours; the references to ‘first’, ‘second’ ‘third’ and ‘fourth’ in the table at clauses 16.1(a) and 16.1(b) amended to ‘1st’, ‘2nd’, ‘3rd’ and ‘4th’; the word ‘time’ deleted from clause 22.3(a)(ii) to amend a typographical error; clause C.2 inserted to include boilers and flues allowance in summary of monetary allowances.

 26   [2020] FWCFB 4839 at [x] – [133]

 27   [2020] FWCFB 2124 at

 28   Live Performance Australia submission, 5 May 2020.

 29   [2020] FWC 2262.

 30   [2020] FWC 2588.

 31   AM2020/26.

 32   Revised exposure drafts and draft variation determinations publication dates: Broadcasting, Recorded Entertainment and Cinemas Award 2010 on 15 May 2020; Electrical, Electronic and Communications Contracting Award 2010 on 14 May 2020; Food, Beverage and Tobacco Manufacturing Award 2010 on 8 May 2020; Horticulture Award 2010 on 8 May 2020; Telecommunications Services Award 2010 on 8 May 2020; Textile, Clothing, Footwear and Associated Industries Award 2010 on 8 May 2020; Timber Industry Award 2010 on 8 May 2020; Wine Industry Award 2010 on 8 May 2020.

 33   [2020] FWCFB 2124 at para [436]

 34   [2020] FWCFB 2124, [61]

 35   [2020] FWCFB 2909

 36   [2020] FWCFB 2909

 37   [2020] FWCFB 2909

 38   [2020] FWCFB 2909

 39   The words ‘film’ and ‘films’ replaced with ‘production’ and ‘productions’ respectively in clauses 13.8, 63; 64, 67.2(b), 69.2(a) and 65.4(a) (heading); the word ‘actor’s’ replaced with ‘artist’s’ in clause 13.10(b); the word ‘Actors’ replaced with ‘Artists’ in Part 11 heading, Schedule E heading, clause H.2 heading and subheading of table appearing in clause H.3.1; definition of artist in clause 63 amended by deleting ‘of the film’ and inserting ‘dancers’; definition of ‘performance’ in clause 63 amended; ‘a performer’ replaced with ‘an actor’ in clause 66.4(i); clause E.1.4 amended; clause E.1.4(v) inserted.

 40   ‘Cinema Worker Level 7’ deleted from clause 13.2(j); clause 13.4 substituted with new clause providing a table of minimum rates employees in cinemas; clause 13.13 deleted as clause inserted at clause 13.4.

 41   See Report to the Full Bench, 21 July 2016 and Exposure Draft—Broadcasting and Recorded Entertainment Award, 10 May 2017.

 42   Cinema Worker Levels 3 to 6 renumbered as 4 to 7 and a new row for Cinema Worker Level 3 inserted into table in clause 13.4, ‘Cinema Worker Level 3’ changed to ‘Cinema Worker Level 4’ reference to ‘clause 14.12’in clause 13.5(b).

 43   [2020] FWCFB 2124, [65] – [80]

 44   Tranche 3 Background Paper, 23 March 2020, [83]

 45   [2020] FWCFB 2908

 46   NECA, Submission, 18 June 2020

 47   NECA, Submission, 18 June 2020, para 11.

 48   [2020] FWCFB 3728

 49   CEPU, Submission, 27 July 2020, para 6.

 50   [2020] FWCFB 2908

 51   NECA, Submission, 18 June 2020, para 16

 52   NECA, Submission, 18 June 2020, [19]-[20]

 53   CEPU, Submission, 27 July 2020, [8]

 54   Report to the Full Bench, [18]

 55   [2020] FWCFB 2908

 56   NECA, Submission, 18 June 2020, [22]-[23]

 57   Electrical, Electronic and Communications Contracting Award 20XX, Exposure Draft, 29 January 2020

 58   [2020] FWCFB 2908

 59   [2020] FWCFB 2908

 60   [2020] FWCFB 2908

 61   PR723314

 62   [2020] FWCFB 2124, [122]

 63   [2020] FWCFB 3094

 64   [2020] FWCFB 4350

 65   AMWU submission, 14 September 2020 at 11

 66   PR722329

 67   [2020] FWCFB 2124, [122]

 68   Ai Group, Submission, 22 April 2020 at para. 3

 69   [2020] FWCFB 2907

 70   [2020] FWCFB 3094

 71   AMWU submission, 14 September 2020 at 11

 72   PR722328

 73   [2020] FWCFB 2124, [182]

 74   [2020] FWCFB 2906

 75   [2020] FWCFB 2906

 76   Report to the Full Bench, 1 June 2020, [11]-[13]

 77   NFF, Submission, 7 July 2020

 78   NFF, Submission, 7 July 2020, paragraph 4

 79   NFF, Submission, 7 July 2020, paragraphs 6-7

 80   [2017] FWCFB 5536, [203]

 81   NFF, Submission, 7 July 2020, paragraphs 11

 82   AWU, Submission, 8 July 2020

 83   AWU, Submission, 8 July 2020

 84   AWU, Submission, 8 July 2020

 85   [2015] FWCFB 6656, [107] – [110]

 86   [2018] FWCFB 1405 at [121]

 87   [2020] FWCFB 2124, [377] - [397]

 88   [2020] FWCFB 2905

 89   [2020] FWCFB 2984

 90   [2020] FWCFB 2984

 91   [2020] FWCFB 2984

 92   HIA, Submission, 7 April 2020

 93   ABI submission 6 March 2020

 94   [2020] FWCFB 2124 at [439]

 95   CFMEU submission in 2009

 96   CFMMEU, submission, 9 April 2020

 97   CFMMEU, submission, 9 April 2020, para 13

 98   [2020] FWCFB 2124, [556]

 99   Association submission, 4 March 2020 at paragraph 4

 100   [2020] FWCFB 2124, [547]

 101   [2020] FWCFB 2904

 102   [2020] FWCFB 4875

 103   [2020] FWCFB 4839

 104   PR722492

 105   [2020] FWCFB 1297