[2021] FWCFB 5117
FAIR WORK COMMISSION

DECISION

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

Four yearly review of modern awards—Black Coal Mining Industry Award 2010
(AM2020/25)

Coal industry

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT

MELBOURNE, 21 SEPTEMBER 2021

4 yearly review of modern awards – finalisation of variations – Black Coal Mining Industry Award 2010.

[1] On 18 November 2020 we issued a decision 1 (November 2020 decision) in relation to two outstanding issues in the Black Coal Mining Industry Award 2010 (Black Coal Award) as part of the 4 yearly review of modern awards (the Review). The first issue concerned the rates of pay applicable to shiftworkers engaged in weekend work and the second concerned rates of pay for work on a public holiday.

[2] In the November 2020 decision we made findings in relation to these issues and we indicated that a conference would be convened by Commissioner Bissett to finalise the appropriate amendments to the Exposure Draft to give effect to our decision.

[3] During the conference it became apparent that the calculation of shiftwork and weekend work penalties for casual employees would need to be re-considered in light of the decision of the Full Bench in the 4 yearly review of Modern Awards – Overtime for casuals decision (Overtime for casuals decision) 2 that overtime rates compounded with the casual rate of pay for ordinary hours in the Black Coal Award3.

[4] Directions were issued requesting submissions in relation to the issue of casual shiftwork and weekend penalties outlined above and on 4 May 2021 we issued a decision (May 2021 decision) 4 in relation to that matter.

[5] Following the May 2021 decision further conferences of interested parties were convened to address the amendments to the Exposure Draft necessary to give effect to that decision and the November 2020 decision.

[6] On 21 July 2021 the parties filed a report (‘the report’) outlining an agreed position in relation to the variations to the Exposure Draft. 5 Correspondence was subsequently received from the parties outlining further agreed amendments.6

[7] The agreed variations have been considered by this Full Bench.

[8] This decision deals with the finalisation of the proposed amendments.

Proposed Variations

1. Tables in Schedules C and D

[9] It is to be noted that the proposed layout and formatting of tables in clauses C.1.2, C.1.4, D.1.2, D.1.4, D.2.2 and D.2.4 as advanced by the parties in the report is cumbersome and inconsistent with the style generally applied to modern awards. The general approach is to ensure that the information presented in modern award schedules accords with plain language principles and remains easy to read and understand.

[10] On 18 August 2021 the Commission issued an alternative proposal to split the abovementioned tables into multiple re-formatted tables so as to conform with the general approach described above, but without affecting the substantive content of the tables. 7 The parties were invited to comment on the alternative proposal. No objections were received in relation to the splitting and re-formatting of the tables.

[11] This revised technical drafting as proposed by the Commission will be reflected in the below amendments and in any re-issue of the Exposure Draft. Clauses in the Exposure Draft affected by the revised formatting will be renumbered accordingly.

2. Clauses 23.1 and 23.2 – Shiftwork and weekend penalty rates

[12] In the May 2021 decision we expressed a provisional view that the casual penalty rates be removed from clauses 23.1 and 23.2. 8 The parties have proposed an alternative approach as follows:

(i) a definition of casual minimum hourly rate be included in clause 2—Definitions;

(ii) clause 11.3, which deals with the casual loading, be amended to clarify that the loaded casual rate is the casual minimum hourly rate;

(iii) clauses 23.1 and 23.2 be deleted and a single table setting out the additional penalties to be paid be inserted; and

(iv) the numbering of clause 23 be amended accordingly.

[13] The amendments proposed to clauses 23.1 and 23.2 also reflect the Overtime for casuals decision.

[14] We are satisfied that the proposed amendments to the Exposure Draft as outlined above reflect the May 2021 decision and that the Exposure Draft should be amended as proposed, save for minor formatting changes. We note that the table to be inserted at clause 23.1 has been re-drafted to accord with plain language principles.

[15] The form of the substantive amendments are at Item 1 in Attachment A of this decision.

3. Clause 29 – Public Holidays

[16] In the November 2020 decision we set out a number of proposed variations to clause 29.4 of the Exposure Draft. 9 Further discussion between the parties has resulted in a proposal to include details of shift loadings that remain payable in an additional subclause within clause 29.3. The parties have also identified some further minor amendments including the need to include the word ‘public’ before the word ‘holiday’ in clause 29.3 and clause 29.5 and the inclusion of the full title of Schedule A and B to ensure consistency. Two notes are also included below the new table to avoid confusion.

[17] We are satisfied that clauses 29.3 to 29.5 of the Exposure Draft should be varied as proposed, save for minor changes to formatting and cross-references.

[18] The form of the substantive amendments are at Item 2 in Attachment A of this decision.

4. Clauses C.1.2 and D.1.2 – Full-time and part-time employee shift rates

[19] In order to give effect to the November 2020 decision 10 and to reflect the change brought about by the proposed amendment to clause 29.4 (above), the parties agreed that clauses C.1.2 and D.1.2 of the last published Exposure Draft should be amended so as to include additional rates. The clauses, as proposed by the parties in the report, provide comprehensive coverage of the rates payable for shiftwork.

[20] However, as mentioned above, clauses C.1.2 and D.1.2 will be set out in the Exposure Draft as per the revised technical drafting issued by the Commission. Consequently, clause C.1.2 will be split into three separate tables numbered C.1.2, C.1.3 and C.1.4. Similarly, clause D.1.2 will be split into three separate tables numbered D.1.2, D.1.3 and D.1.4.

[21] We are satisfied that the clauses as amended reflect the November 2020 decision. The details of the amendments are at Item 3 in Attachment A of this decision.

5. Clause D.2.1 – Casual staff employees – ordinary and penalty rates

[22] The rates set out in clause D.2.1 of the Exposure Draft do not accurately reflect the May 2021 decision. 11 The parties have proposed corrected rates. We agree that these rates should be included in clause D.2.1. The details of the substantive amendments are at Item 4 in Attachment A of this decision.

6. Clause D.2.2 – Casual staff employees – shiftwork

[23] In the report the parties have proposed an amendment to clause D.2.2 – Casual staff employees – shiftwork to accurately reflect the November 2020 decision 12 and the May 2021 decision.13 We are satisfied that the proposal properly reflects the decisions.

[24] However, as mentioned above, clause D.2.2 will be set out in the Exposure Draft as per the revised technical drafting issued by the Commission. Consequently, clause D.2.2 will be split into three separate tables numbered D.2.2, D.2.3 and D.2.4.

[25] The details of the amendments are at Item 5 in Attachment A of this decision.

7. Proposed clauses D.2.3 Casual staff employees other that 6 day roster and 7 day roster employees – overtime rates and D.2.4 - Casual staff employees – 6 day roster and 7 day roster employees – overtime rates

[26] In the May 2021 decision we determined the appropriate basis for the calculation of penalties for casual employees. 14 The parties have proposed the addition of two further clauses in Schedule D of the Exposure Draft to properly summarise overtime rates for casual staff employees in various categories. These summary rates are not otherwise set out in the Exposure Draft.

[27] We are satisfied that the proposal reflects the May 2021 decision and an amendment to the Exposure Draft to include these clauses is necessary.

[28] We will insert the two further tables in Schedule D of the Exposure Draft, with the clauses numbered in accordance with the revised technical drafting proposed by the Commission. Clause D.2.3 as proposed by the parties in the report will be inserted in the Exposure Draft as clause D.2.5.

[29] Clause D.2.4 as proposed by the parties will be set out in the Exposure Draft as per the revised technical drafting issued by the Commission. Consequently, clause D.2.4 as proposed by the parties will be split into four separate tables numbered D.2.6, D.2.7, D.2.8 and D.2.9.

[30] The details of the amendments are at Item 6 in Attachment A of this decision.

8. Clauses C.1.3 and D.1.3 and clause 21.2 – Overtime rates

[31] In the November 2020 decision we identified an issue in relation to overtime rates for certain shiftworkers. 15 The matter raised related to the erroneous confinement of certain shiftwork penalty rates in clauses C.1.3, D.1.3, C.1.4 and D.1.4 of the last published Exposure Draft. We expressed a view indicating a preferred resolution. Subsequent discussions between the parties resulted in an agreement about how the Exposure Draft should be amended. The parties propose:

(i) the inclusion of a note below each of the tables containing overtime rates of pay for ‘employees other than 6 day roster and 7 day roster employees’ (i.e.: below the tables in clauses C.1.5 and D.1.5 in the revised technical drafting);

(ii) a variation to clause 21.2(b); and

(iii) the inclusion of a further clause C.1.10 that summarises the overtime rates for ‘regular weekend workers’ (employees subject to clause 21.2 but for whom the rates are not otherwise summarised in Schedule C).

[32] On 25 August 2021 Ai Group filed a submission proposing that further clauses D.1.10 and D.2.10 also be inserted in Schedule D to provide overtime rates for full-time, part-time and casual regular weekend workers who are staff employees. Save for amendments to correct a minor error in Ai Group’s proposal, no objections to the inclusion of D.1.10 and D.2.10 were received. CMIEG expressed support for Ai Group’s proposal.

[33] We are satisfied that the abovementioned proposals reflect the November 2020 decision and the amendment to the Exposure Draft should be made in the manner described, save for minor amendments to formatting and cross-references for consistency with plain language principles and modern award styles. Further, we will amend the headings of clauses C.1.10, D.1.10 and D.2.10 from that proposed by the parties to omit the reference to clause 21.2(b)(ii). To maintain clarity we will insert a note below each table that refers to the definition of ‘regular weekend workers’ in clause 21.2(b)(ii).

[34] Additionally, we note that since the publication of the last Exposure Draft, amendments to clause 17.2 of the Black Coal Mining Industry Award 2010 (2010 Award) have been made by the Overtime for casuals Full Bench. 16 Clause 17.2 of the 2010 Award now expressly sets out overtime rates for casual employees. In light of these amendments we will not insert the note at clause 21.2(b) of the Exposure Draft as proposed by the parties and will refer references to casual overtime rates in clause 21.2 to the Finalisation Full Bench to determine.

[35] The details of the substantive amendment to the Exposure Draft are at Item 7 in Attachment A of this decision.

9. Clauses C.1.4 and D.1.4 – Overtime

[36] In the November 2020 decision we reached a number of conclusions with respect to clauses C.1.4 and D.1.4 17 in the Exposure Draft. The agreed variations to the Exposure Draft advanced by the parties in the report reflect these decisions. These include appropriate percentages of the minimum hourly rate for overtime worked and the range of circumstances when overtime may be worked.

[37] We are satisfied that the proposal reflects the November 2020 decision and the amendment to the Exposure Draft should be made in the manner described.

[38] However, as mentioned above, clause C.1.4 will be set out in the Exposure Draft as per the revised technical drafting issued by the Commission. Consequently, clause C.1.4 will be split into four separate tables numbered C.1.6, C.1.7, C.1.8 and C.1.9. Similarly, clause D.1.4 will be split into four separate tables numbered D.1.6, D.1.7, D.1.8 and D.1.9.

[39] The details of the substantive amendment to the Exposure Draft are at Item 8 in Attachment A of this decision.

Conclusion

[40] We acknowledge that some of the amendments to the Exposure Draft confirmed in this decision may vary from the form of amendments that we have previously proposed. However, we are satisfied that the amendments continue to reflect our conclusions in the November 2020 decision and the May 2021 decision and, as they relate to the two matters before us, the conclusions of the Full Bench in the Overtime for Casuals decision.

[41] Having now determined the matters referred to this Full Bench we will refer the Exposure Draft to the Finalisation Full Bench to address any remaining technical and drafting matters and to finalise the consequent variation of the Black Coal Award.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<MA000001  PR732952>

ATTACHMENT A

Item 1

(i) The following definition of ‘casual minimum hourly rate’ is to be inserted at clause 2:

‘casual minimum hourly rate means the minimum hourly rate for a casual employee for the employee’s classification specified in Schedule B—Staff Employees, inclusive of the 25% casual loading set out at clause 11.3(a).’

(ii) Clause 11.3 is to be amended to read as follows (underline to be inserted):

‘11.3 Casual loading

(a) For each ordinary hour worked, a casual employee must be paid: 

(i) the minimum hourly rate; and

(ii) a loading of 25% of the minimum hourly rate, 

for the classification in which they are employed. This rate (inclusive of the 25% loading) is the casual minimum hourly rate.’

(iii) The heading at clause 23 and existing clauses 23.1 and 23.2 are to be deleted and replaced with the following:

‘23. Penalty rates and weekend work

23.1 An employee will be paid the following additional penalties for all ordinary hours worked during the following periods.

NOTE: Where clause 23.1 refers to a rate as being calculated as a percentage of the minimum hourly rate, that reference will (for a casual employee) instead be taken to be a reference to the casual minimum hourly rate where applicable.’

(iv) Clause 23 is to be renumbered accordingly.

Item 2

Clause 29.3, 29.4 and 29.5 are to read as follows (strikethrough to be deleted, underline to be added):

29.3 Employee not required to work on a public holiday

(a) An employee who is not required to work on a public holiday which would otherwise have been a working day for that employee will be paid for that day at the employee’s classification rate.

29.4 Employee required to work on a recognised public holiday

(a) An employee who is required to work on a holiday is to be paid at the rate of double time for work performed during ordinary hours, in addition to the payment prescribed.

(b) Work performed in excess of ordinary hours on a holiday is to be paid at the rate of treble time.

(a) Subject to clause 29.4(c), an employee who is required to work on a public holiday is to be paid at the rate of 200% of the relevant minimum hourly rate prescribed by Schedules A—Production and Engineering Employees and B—Staff Employees for work performed during ordinary hours, in addition to the payment prescribed by clause 29.3.

(b) Subject to clause 29.4(c), work performed in excess of ordinary hours on a public holiday is to be paid at the rate of 300% of the relevant minimum hourly rate prescribed by Schedules A—Production and Engineering Employees and B—Staff Employees.

(c) In addition to the amounts paid in clauses 29.4(a) and 29.4(b) above, an employee will be paid the following additional shift penalties for working on a public holiday:

NOTE 1: Where clause 29.4 refers to a rate as being calculated as a percentage of the minimum hourly rate, that reference will (for a casual employee) instead be taken to be a reference to the casual minimum hourly rate where applicable.

NOTE 2: See also clauses C.1.4, D.1.4, D.2.4, D.2.8, C.1.8 and D.1.8.

29.5 Notice of public holidays to be worked (other than employees working shifts of up to 8.5 ordinary hours)

(a) On a date agreed, the employer will nominate which public holidays will be worked in the following 12 months by employees (other than employees working shifts of up to 8.5 ordinary hours on weekdays), provided that work will not be carried out on 2 of such public holidays.

(b) If the employer does not require employees to work on a public holiday (as nominated in clause 29.5(a)) the employer must give the employees as much notice as possible of this decision.

(c) If the notice required by clause 29.5(b) is less than 4 weeks inclusive of the public holiday, an employee who was rostered to work on the public holiday is to be paid for ordinary hours as if the public holiday had been worked.

(d) If the employer decides not to require work to be performed on a public holiday because of a strike or ban, employees, other than those involved in the strike or ban, are to be paid at their classification rate for ordinary hours.

Item 3

(i) Clause C.1.2 (Full-time and part-time production and engineering employees—shiftwork) is to be deleted and replaced with the following (with remaining clauses in Schedule C to be renumbered accordingly):

C.1.2 Full-time and part-time production and engineering employees—shiftwork—Monday to Friday

1 Rotating night shift and permanent night shift are defined in clause 22.1.

C.1.3 Full-time and part-time production and engineering employees—shiftwork—Weekend

1 Rotating night shift and permanent night shift are defined in clause 22.1.

C.1.4 Full-time and part-time production and engineering employees—shiftwork—Public holiday

1 Rotating night shift and permanent night shift are defined in clause 22.1.

(ii) Clause D.1.2 (Full-time and part-time staff employees—shiftwork) is to be is to be deleted and replaced with the following (with remaining clauses in Schedule D to be renumbered accordingly):

D.1.2 Full-time and part-time staff employees—shiftwork—Monday to Friday

1 Rotating night shift and permanent night shift are defined in clause 22.1.

D.1.3 Full-time and part-time staff employees—shiftwork—Weekend

1 Rotating night shift and permanent night shift are defined in clause 22.1.

D.1.4 Full-time and part-time staff employees—shiftwork—Public holiday

1 Rotating night shift and permanent night shift are defined in clause 22.1.

Item 4

The penalty rates expressed in the table at clause D.2.1 are to be amended as follows (strike through to be deleted, underline to be inserted):

D.2.1 Casual staff employees—ordinary and penalty rates

Item 5

Clause D.2.2 (Casual staff employees—shiftwork) is to be amended by deleting the table currently appearing in the clause and inserting the following:

D.2.2 Casual staff employees—shiftwork—Monday to Friday

1 Rotating night shift and permanent night shift are defined in clause 22.1.

D.2.3 Casual staff employees—shiftwork—Weekend

1 Rotating night shift and permanent night shift are defined in clause 22.1.

D.2.4 Casual staff employees—shiftwork—Public holiday

1 Rotating night shift and permanent night shift are defined in clause 22.1.

Item 6

(i) Clause D.2.5 is to be inserted as follows:

D.2.5 Casual staff employees other than 6 day roster and 7 day roster employees— overtime rates

(ii) Clauses D.2.6, D.2.7, D.2.8 and D.2.9 are to be inserted as follows:

D.2.6 Casual staff employees—6 day roster and 7 day roster employees—overtime rates—Monday to Friday

1 Rotating night shift and permanent night shift are defined in clause 22.1.

D.2.7 Casual staff employees—6 day roster and 7 day roster employees—overtime rates—Weekend

1 Rotating night shift and permanent night shift are defined in clause 22.1.

NOTE: Where an employee works a combination of ordinary hours and overtime hours on a Saturday, all hours worked will be counted towards determining whether an employee has worked in excess of 4 hours pursuant to clause 23.1.

D.2.8 Casual staff employees—6 day roster and 7 day roster employees—overtime rates—Public holiday

1Rotating night shift and permanent night shift are defined in clause 22.1.

D.2.9 Casual staff employees—6 day roster and 7 day roster employees—overtime rates—All other overtime

Item 7

(i) The following note is to be inserted below the tables at clauses C.1.5 and D.1.5

‘NOTE: These rates do not apply to employees referred to in clause 21.2(b)(ii). For such employees, all overtime will be paid for at the rate of 200% of the minimum hourly rate, or where the overtime is worked on a public holiday, at the rate of 300% of the minimum hourly rate.’

(ii) Clause 21.2(b) is to be amended so that it reads as follows (strike out to be deleted, underline to be added):

‘(b) Subject to clause 21.3, Aall time worked in excess of or outside the ordinary hours of any shift by employees:

(i) who are 6 day roster employees or 7 day roster employees; or

(ii) who work a roster which requires ordinary shifts on public holidays and not less than 272 ordinary hours per year on Sundays; or

(iii) who work a roster which requires ordinary shifts on Saturday and Sunday where the majority of the rostered hours on the Saturday or Sunday shifts fall between midnight Friday and midnight Sunday;

(ii) who are regular weekend workers, meaning employees:

•  who work a roster which requires ordinary shifts on public holidays and not less than 272 ordinary hours per year on Sundays; or

•  who work a roster which requires ordinary shifts on Saturday and Sunday where the majority of the rostered hours on the Saturday or Sunday shifts fall between midnight Friday and midnight Sunday;

will be paid for at the rate of 200% of the minimum hourly rate., except on public holidays where the rate is 300% of the minimum hourly rate.

(iii) Clause C.1.10 is to be inserted as follows:

C.1.10 Full-time and part-time production and engineering employees—Regular weekend workers—Overtime rates 

NOTE:   Regular weekend workers are defined in clause 21.2(b)(ii)

(iv) Clause D.1.10 is to be inserted as follows:

D.1.10 Full-time and part-time staff employees—Regular weekend workers—Overtime rates 

NOTE:   Regular weekend workers are defined in clause 21.2(b)(ii)

(iv) Clause D.2.10 is to be inserted as follows:

D.2.10 Casual staff employees—Regular weekend workers—Overtime rates 

NOTE:   Regular weekend workers are defined in clause 21.2(b)(ii)

Item 8

(i) Clause C.1.4 (Full-time and part-time production and engineering employees—6 day roster and 7 day roster employees—overtime) is to be amended by deleting the table currently appearing in the clause and inserting the following:

C.1.6 Full-time and part-time production and engineering employees—6 day roster and 7 day roster employees—overtime—Monday to Friday

1 Rotating night shift and permanent night shift are defined in clause 22.1.

C.1.7 Full-time and part-time production and engineering employees—6 day roster and 7 day roster employees—overtime—Weekend

1 Rotating night shift and permanent night shift are defined in clause 22.1.

NOTE: Where an employee works a combination of ordinary hours and overtime hours on a Saturday, all hours worked will be counted towards determining whether an employee has worked in excess of 4 hours pursuant to clause 23.1.

C.1.8 Full-time and part-time production and engineering employees—6 day roster and 7 day roster employees—overtime—Public holiday

1 Rotating night shift and permanent night shift are defined in clause 22.1.

C.1.9 Full-time and part-time production and engineering employees—6 day roster and 7 day roster employees—overtime—All other overtime

(ii) Clause D.1.4 is to be amended by deleting the table currently appearing in the clause and inserting the following:

D.1.6 Full-time and part-time staff employees—6 day roster and 7 day roster employees—overtime—Monday to Friday

1 Rotating night shift and permanent night shift are defined in clause 22.1.

D.1.7 Full-time and part-time staff employees—6 day roster and 7 day roster employees—overtime—Weekend

1 Rotating night shift and permanent night shift are defined in clause 22.1.

NOTE: Where an employee works a combination of ordinary hours and overtime hours on a Saturday, all hours worked will be counted towards determining whether an employee has worked in excess of 4 hours pursuant to clause 23.1.

D.1.8 Full-time and part-time staff employees—6 day roster and 7 day roster employees—overtime—Public holiday

1 Rotating night shift and permanent night shift are defined in clause 22.1.

D.1.9 Full-time and part-time staff employees—6 day roster and 7 day roster employees—overtime—All other overtime

 1   [2020] FWCFB 5908

 2   [2020] FWCFB 4350

 3   Ibid at [59]

 4   [2021] FWCFB 2023

 5   Correspondence with parties’ report, 21 July 2021

 6   See correspondence from CFMMEU, 9 August 2021

 7   See correspondence from Fair Work Commission, 18 August 2021

 8   [2021] FWCFB 2023 at [20], [21] and [24]

 9   [2020] FWCFB 5908 [99]-[104], [110] and [116]

 10   [2020] FWCFB 5908 at [55]

 11   [2021] FWCFB 2023 at [17] and [18]

 12   [2020] FWCFB 5908 at [55]

 13   [2021] FWCFB 2023 at [20] and [21]

 14   [2021] FWCFB 2023 at [17] and [18]

 15   [2020] FWCFB 5908 at [40]

 16   See [2020] FWCFB 5636 and PR723855

 17   [2020] FWCFB 5908 at [39], [55] and [63]