[2021] FWCFB 5428

The attached document replaces the document previously issued with the above code on 1 September 2021.

Paragraphs 9 and 9(a) have been amended.

Elizabeth Stewart
Associate to Deputy President Clancy

Dated 6 September 2021

Fair Work Act 2009
s.158—Application to vary or revoke a modern award

Total Toning Fitness Pty Ltd
(AM2021/62)

Application to vary a modern award – Fitness Industry Award 2020 – span of hours when rostered to work a broken shift – clause 13.4(c).

[1] On 10 May 2021, Total Toning Fitness Pty Ltd (the Applicant) filed an application to vary the Fitness Industry Award 2020 (the Award) to increase the maximum span of hours over which an employee can be rostered to work a broken shift from 12 to 13 hours. The Full Bench issued a statement on 20 May 2021.

[2] A conference of interested parties was convened on 4 June 2021 to consider the variation sought by the Applicant. Mr Paul Rose attended for the Applicant, together with Ms Erin Keogh of the United Workers’ Union (UWU) and Mr John Monroe representing Gymnastics Australia Limited. The transcript from the conference is available here.

[3] As has previously been outlined, Clause 13.4(c) of the Award states:

‘13.4 An employee may be rostered to work a broken shift on any day provided that:

…

(c) the span of hours from the start of the first part of the shift to the end of the second part of the shift is not more than 12 hours.’

[4] In making the application, the Applicant contends that in order for employers to offer full or part-time employment to a single trainer who can cover peak industry hours, the maximum span of hours over which an employee can be rostered to work a broken shift should be increased from 12 to 13 hours. The Applicant submits that this would allow employees to gain more secure positions as a single trainer could work, for example, between the hours 6.00 am – 9.00 am and 4.00 pm – 7.00 pm. The Applicant submits that under the current maximum 12-hour span for broken shifts, it is required to employ two casual employees to cover peak industry hours.

[5] The UWU opposes the application on the following grounds:

•  Continuity of hours under awards appears to be a core expectation.

•  In providing for broken shift arrangements, the Award provides an exceptionally broad entitlement with relatively low remuneration.

•  The capacity to schedule employees for only three hours of work over a 12 hour duration is an exceptionally low bar for split shift arrangements.

•  The compensation applicable to broken shifts in the Award is relatively low and fails to meet the modern award objective of appropriately compensating employees for working unsociable hours, and to be properly remunerated for that work.

•  Any expansion of the span of hours applicable for a broken shift arrangement is not necessary to meet the modern award objectives and would fail to recognise the needs of low-paid workers.

•  The requirement to be available for a 13 hour period would negatively impact on social inclusion and workforce participation.

[6] Gymnastics Australia supports the variation proposed by the Applicant and considers it to be consistent with the needs of the industry, the needs of employers who are covered by the Award, the needs of employees in this industry, and the expected work pattern of employees within this industry.

[7] The Commission has identified 18 modern awards which deal with broken and/or split shift arrangements noting that the reference in the Medical Practitioners Award 2020 outlines that split shifts are prohibited in relation to certain employees. A table outlining these modern awards and arrangements is available here. It is noted that of these modern awards, only the Security Services Industry Award 2020 does not stipulate a maximum spread/span of hours for broken/split shift work.

[8] It is further noted that broken/split shift provisions have been identified in the following enterprise/state reference public sector awards:

•  Australian Broadcasting Corporation Enterprise Award 2016 – see clauses 22.3(b) and (c)

•  Australian Capital Territory Public Sector Enterprise Award 2016 – see clause 8.3(d)

•  Australian Federal Police Enterprise Award 2016 – see clause 7.3(a)

•  Australian Public Service Enterprise Award 2015 – see clause F.5.2

•  Australia Post Enterprise Award 2015 – see clauses 32.9

•  Northern Territory Public Sector Enterprise Award 2016 – see clauses 8.5 and Schedule A-Definitions

•  Optus Award 2015 – see clauses 17.1 and 17.2

•  Victorian Local Government (Early Childhood Education Employees) Award 2016 – see clause 19.2

[9] The Full Bench has determined that any interested party will be afforded the opportunity to file material supporting or opposing the application and be heard, and directs as follows:

a) Any submissions, witness statements and any other documentary material upon which an interested party both supporting and opposing intends to rely is to be sent to [email protected] by 4:00pm (AEST) on Wednesday, 22 September 2021.

b) Any submissions in reply to material filed by another party is to be sent to [email protected] by 4:00pm (AEST) on Wednesday, 6 October 2021.

c) The application is listed for hearing at 10:00am (AEST) on Monday, 25 October 2021 and Tuesday, 26 October 2021. All witnesses are required to be available to give evidence at these times.

[10] All material files in this proceeding will be posted on the webpage established in relation to the application. Any questions about the application or these directions can be directed to [email protected].

DEPUTY PRESIDENT

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