| [2021] FWCFB 5530 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021
cl.48, Schedule 1 of the Fair Work Act 2009
Casual terms award review 2021
(AM2021/54)
Various industries | |
VICE PRESIDENT HATCHER |
SYDNEY, 13 SEPTEMBER 2021 |
Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 – casual amendments – review of modern awards – Stage 2 – Groups 1-3 – contested matters determined.
[1] On 27 March 2021 the Fair Work Act 2009 (Cth) (Act) was amended by Schedule 1 to the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) (Amending Act). The amendments included introducing a definition of ‘casual employee’ in s.15A of the Act and casual conversion arrangements in Division 4A of Part 2-2 of the Act.
[2] The Amending Act inserted additional application, savings and transitional provisions into Schedule 1 of the Act. The newly inserted cl.48 of Schedule 1 to the Act requires the Fair Work Commission (Commission) to conduct a review (Casual Terms Review or Review) and vary modern awards where necessary to remove inconsistencies, difficulties or uncertainties caused by the amendments to the Act.
[3] The Casual Terms Review is being conducted in 2 stages. As part of Stage 1, a five-member Full Bench issued a decision 1 (July 2021 decision) that considered the nature and scope of the Review and reviewed ‘relevant terms’ (as defined in cl.48) in an initial group of six modern awards.
[4] This Full Bench has been constituted to review the remaining modern awards which have been divided into 4 groups as part of Stage 2 of the Review. The groups are set out at Attachment A to our statement 2 of 3 August 2021.
[5] In statements issued on 3 August 2021 3 (3 August statement), 6 August 20214 (6 August statement), 11 August 20215 (11 August statement) and 18 August 20216 (18 August statement), we outlined provisional views in relation to awards in Groups 1-3. Each statement provided interested parties with an opportunity to provide any responses to these provisional views. Additionally, for provisions in some awards, we declined to provide a provisional view and instead called for further submissions regarding particular award clauses.
[6] Where a provisional view was contested, further directions were issued for additional submissions and evidence. The following award clauses were either contested or required further submissions:
Group 1
Broadcasting, Recorded Entertainment and Cinemas Award 2020 (Broadcasting Award)
• Clause 11.6
Building and Construction General On-site Award 2020 (Building Award)
• Clause 12.1
• Clause 13
Electrical, Electronic and Communications Contracting Award 2020 (Electrical Contracting Award)
• Clause 11.5
Food, Beverage and Tobacco Manufacturing Award 2020 (Food Manufacturing Award)
• Clause 10.8
• Clause 10.9
Joinery and Building Trades Award 2020 (Joinery Award)
• Clause 12
Meat Industry Award 2020 (Meat Award)
• Matters raised in [46] – [63] of the 3 August 2021 statement 7
• Clause 12.8
Mobile Crane Hiring Award 2020 (Mobile Crane Award)
• Clause 9.7
Plumbing and Fire Sprinklers Award 2020 (Plumbing Award)
• Clause 12.4
Group 2
Alpine Resorts Award 2020 (Alpine Award)
• Clause 20.3
Cement, Lime and Quarrying Award 2020 (Cement Award)
• Clause 11.5
Cleaning Services Award 2020 (Cleaning Services Award)
• Clause 11.2
Concrete Products Award 2020 (Concrete Products Award)
• Clause 11.5
Graphic Arts, Printing and Publishing Award 2020 (Graphic Arts Award)
• Clause 11.6
Horse and Greyhound Training Award 2020 (Horse and Greyhound Award)
• Clause 10.7
Textile, Clothing, Footwear and Associated Industries Award 2020 (Textile Award)
• Clause 11.1
• Clause 11.12 (except opening paragraph)
• Clause 11.12 (opening paragraph)
Vehicle Repair, Services and Retail Award 2020 (Vehicle Award)
• Clause 11.6
Group 3
Higher Education Industry – Academic Staff – Award 2020 (Higher Education – Academic Staff Award)
• Provisional view at [41] of the 18 August 2021 statement 8
Labour Market Assistance Industry Award 2020 (Labour Market Award)
• Issue expressed at [46] – [48] of the 18 August 2021 statement 9
Sugar Industry Award 2020 (Sugar Award)
• Clause 10.6
[7] This decision deals with the abovementioned award matters.
Background
[8] A number of contested provisional views relate to casual conversion provisions in the following 12 awards:
• Building Award (clause 13);
• Electrical Contracting Award (clause 11.5);
• Food Manufacturing Award (clauses 10.8 and 10.9);
• Joinery Award (clause 12);
• Mobile Crane Award (clause 9.7);
• Plumbing Award (clause 12.4);
• Cement Award (clause 11.5);
• Concrete Products Award (clause 11.5);
• Graphic Arts Award (clause 11.6);
• Textile Award (clause 11.12);
• Vehicle Award (clause 11.6); and
• Sugar Award (clause 10.6).
[9] Each of the abovementioned awards contains an award specific casual conversion clause and our provisional view (expressed in the 3 August statement, the 11 August statement and the 18 August statement) was that these clauses should be deleted and replaced with a reference to the NES casual conversion entitlements in order to satisfy the requirement in cl.48(3) of Schedule 1. That provisional view was formed on the basis that the casual conversion provisions in question were the same, or substantially the same as that in clause 11.5 of the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award). In the July 2021 decision, the Full Bench determined to delete the casual provision in that award and replace it with a reference to the NES casual conversion provisions. That conclusion was based on the following findings:
(1) Clause 11.5 is less beneficial than the residual right to request conversion in the NES in 4 respects:
• it requires the employer to give notice of the right to request conversion within 4 weeks of the employee becoming qualified to do so, as distinct from before or as soon as practicable after the employee commences employment under s.125B;
• the award right is a one-off right, as distinct from the ongoing residual right in the Act;
• the time for the employer to respond to the request is shorter under the Act (21 days) than the award (4 weeks); and
• the award arguably provides for broader and less defined grounds for the employer to refuse a request.
(2) Clause 11.5 is more beneficial than the NES residual right to request conversion insofar as it allows a request only after 6 months’ regular casual employment. However, this benefit may not be significant since the criterion of 6 months’ regular casual employment may not commonly be met within the first 6 months of employment. There was no evidence before the Commission of the extent to which casual employees covered by the Manufacturing Award have historically exercised the award entitlement to request conversion after only 6 months’ employment, or before 12 months’ employment has been reached – or, indeed, the extent to which the entitlement is exercised at all.
(3) Clause 11.5 is not comparable to the NES requirement to offer casual employment, and the NES suite of casual conversion rights provided for in the Act are more beneficial to employees than clause 11.5 of the Manufacturing Award.
(4) There is a conflict between clause 11.5 and the NES residual right to request conversion which arises in at least two ways. First, the facilitative provision in cl.11.5(j) allows for the requirement for 6 months’ regular casual employment to be extended to 12 months by majority agreement, which brings the operation of clause 11.5 within the same field as the NES entitlement. Second, the prerequisite for 6 months’ regular casual employment in the award may not be achieved in any event until after 12 months’ employment in total, meaning again that the field of operation of the award clause will overlap with the NES.
(5) There would also be uncertainty and difficulty concerning the interaction between the Manufacturing Award and the NES. Simultaneous compliance with both set of obligations would be, if not impossible, conducive of difficulty and confusion for both employers and employees.
(6) Clause 11.5 cannot be retained in its present form.
(7) A proposal by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) to modify clause 11.5 to remove the ability to extend the qualifying period of regular casual employment provision in clause 11.5(j) to 12 months would fundamentally imbalance the clause by removing only a provision of benefit to employers and constituted ‘cherry picking’, and would not in any event resolve the inconsistency.
(8) The proposal advanced by the Australian Manufacturing Workers’ Union (AMWU) for a new clause which reproduced the entirety of the NES provisions concerning the residual right to request casual conversion into the Manufacturing Award, with the modification that the right becomes available after 6 months’ rather than 12 months’ employment, did not involve preservation of the existing provision but rather the establishment of a new regime of award obligations merely for the sake of ‘saving’ one element of the existing provision, namely the eligibility criterion of 6 months’ regular casual employment. A variation of this nature would not achieve the modern awards objective since it would disrupt the careful balance in the existing clause and amount to ‘cherry picking’ and would increase the regulatory burden on employers and make the award system more complex and less easy to understand.
(9) The alternative option of entirely deleting clause 11.5 (and 11.6) and replacing the provisions with a reference to the NES casual conversion entitlements would satisfy the requirement in clause 48(3) of Schedule 1 of the Act.
[10] The unions parties which filed submissions and evidence opposed the provisional views expressed in relation to the casual conversion provisions in the 12 awards, while the employer parties which filed submissions supported the provisional views.
Submissions and evidence – union parties
[11] The CFMMEU made separate submissions about different awards via its Construction and General Division and its Manufacturing Division. Via the former division, the CFMMEU made submissions 10 opposing the removal of the existing provisions permitting casual conversion after 6 months in the Building Award, the Joinery Award and the Mobile Crane Award (construction awards) on the basis that this would reduce the integrity of the award safety net and clearly not be in accordance with the objects of the Act and the modern awards objective. The CFMMEU submitted that there are distinguishing features of the construction awards and the building and construction industry that were not considered in the July 2021 decision, including a history of limitations on the duration of casual employment in awards prior to award modernisation, which justified the maintenance of a right to request conversion after 6 months’ employment or the adoption of an alternate approach for the construction awards. The CFMMEU’s submissions outlined the history of awards in the construction industry, which included restrictions on the maximum duration of casual employment (for example, 6 weeks in the case of the National Building and Construction Industry Award 2000). These provisions were removed in the award modernisation process and replaced by casual conversion clauses.
[12] The CFMMEU also submitted that it did not agree with the conclusion in the July 2021 decision that clause 11.5 of the Manufacturing Award was less beneficial than the NES residual right to conversion, and characterised the Full Bench’s reasoning in that respect as ‘not easily fathomable’. It submitted that the benefits of casual conversion after 6 months are clearly superior to the ‘so-called’ benefits of the NES provisions, which it described as ‘flimsy and bear no real benefit to the workers it purports to assist in obtaining stable and reliable work’, and that there is nothing in the NES provisions which require the employer to make a genuine attempt to reach agreement as to conversion or that restricts an employer from engaging and re-engaging a casual employee to avoid casual conversion. Moreover, it submitted, the NES provisions give ‘employers signposts on how they can avoid casual conversion’.
[13] It submitted that:
• the level of casual employment in the construction industry from 2014 to March 2020 was 18-22% for full-time employees and 57-69% for part-time employees;
• the growth of casual employment in the building and construction industry between 2014 and 2020 ranged between 23-27%, up from 21.8% in 2013;
• this has been accompanied by the increasing use of labour hire arrangements in the construction industry;
• a selection of job advertisements showed that casual workers in the building and construction industry are used for project-based work, which in many cases is ongoing, and that casuals are used in a range of occupations and mainly for skilled work;
• the way in which casuals are being used in the building and construction industry is clearly different to the way in which the casual employment and part-time employment Full Bench in the 4 yearly review proceedings11 thought they were being used;
• the project nature of construction work and the way in which employees are usually engaged for the duration of projects is an important consideration for the safety net to apply to building and construction workers; and
• the changes to the Act effected by the Amending Act, coupled with the High Court’s recent decision in Workpac v Rossato & Ors, 12 require that the Commission exercise its powers in a way which protects the safety net of building and construction workers and does not diminish it.
[14] The CFMMEU’s submissions pointed to standard project times in the industry, which were generally less than 2 years, and submitted that in that context the NES provisions would have little work to do because they could only operate after 12 months’ employment, with the employer then having a right to refuse conversion if the position will cease to exist in the following 12 months.
[15] The CFMMEU relied on witness statements made by Mark Cross, 13 and Nigel Davies14 in support of their position. Mr Cross and Mr Davies are officials in the Construction and General Division of the CFMMEU and gave evidence in their statements as to the increased use of casual employees in the building and construction industry and the preference of employees to be employed on a daily hire or weekly hire basis. No party required them for cross-examination.
[16] The CFMMEU submitted that rather than pursuing the provisional view, we should vary the construction awards and redraft the casual conversion clause to incorporate the residual right of conversion under the Act but on the basis that an employee is eligible to make a request after 6 months’ employment. It provided a draft determination setting out the terms of such a variation. In the alternative, the CFMMEU submitted that we should delete the casual conversion clause and reinsert the temporal restrictions on casual employment in the industry awards which existed prior to award modernisation.
[17] Via its Manufacturing Division, the CFMMEU also opposed the provisional view of the Full Bench to replace the casual conversion clause, other than the opening paragraph, of the Textile Award with a reference to the NES casual conversion entitlements. 15 The CFMMEU submitted that the findings of the Full Bench in relation to the Manufacturing Award in the July 2021 decision should not automatically flow to other awards containing similar casual conversion clauses, including the Textile Award, and that a number of the findings in that decision as regards certain aspects of the NES casual conversion provision being more beneficial) are not sustainable when applied to the textile, clothing and footwear (TCF) industry.
[18] The CFMMEU submitted that the history of the insertion of the current clause 11.12 in the Textile Award is a relevant consideration regarding the purpose and necessity of its terms to ensure the award meets the modern awards objective (ss.134 and 138), and submitted that the nature and characteristics of the TCF industry and its workforce are relevant considerations informing the need for award regulation for casual workers in the sector, and the specific form of the regulation. It submitted that when the casual conversion clause was included into the Textile Award during award modernisation proceedings, account was taken of the particular nature and characteristics of the TCF industry and its workforce, including a structurally dislocated industry with a low paid, culturally and linguistically diverse and highly award dependent workforce. The CFMMEU submitted that industrial tribunals have for many decades acknowledged the particular vulnerabilities faced by workers in the TCF industry and confirmed this as a relevant consideration in determining the appropriate award safety net, which has regularly included additional safeguards.
[19] It was submitted that it was significant that the NES obligation for employers to offer casual conversion did not apply to small businesses in circumstances where there is a very high percentage of small business employers in the TCF industry. This meant that this aspect of the NES scheme provided minimal utility for casual employees working in the TCF industry and is therefore less beneficial than the current casual conversion clause.
[20] The CFMMEU submitted that the Full Bench should redraft clause 11.12 of the Textile Award only to the extent necessary to ensure consistency with the Act but preserving the 6-month eligibility period for casual employees of employers of any size.
[21] The CFMMEU relied upon the witness statements of Paris Nicholls 16 and Elizabeth Macpherson17 in support of its submissions. Ms Nicholls and Ms Macpherson are employed officials in the Manufacturing Division of the CFMMEU. In her statement, Ms Nicholls provided statistical information about the demographic profile of employees in the TCF industry and the number of persons employed by employers in the industry (showing that 90% of businesses employed only 1-19 employees).
[22] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) supported the submission of the CFMMEU with respect to the construction awards. 18 In relation to the Electrical Contracting Award, the CEPU opposed the deletion of the entirety of clause 11.5 and proposed instead modifying the NES entitlement to retain the 6-month right to request provided by clause 11.5(a) in the Electrical Contracting Award. Alternatively, it proposed that the casual conversion clause be deleted in its entirety and the award varied to re-insert the limitations on the duration of casual employment that existed prior to award modernisation.
[23] The CEPU accepted that some aspects of clause 11.5 in the Electrical Contracting Award may be less beneficial than the NES entitlement, but submitted that the current provision is more beneficial because it allows a request for conversion to be made after 6 months of casual employment as opposed to 12 months. The CEPU sought to distinguish the Electrical Contracting Award and the industry it covered from the circumstances considered by the Full Bench in the July 2021 decision. It submitted that:
• the 6-month casual conversion provisions have operated as a disincentive to employers engaging casuals within the Electrical Industry, with the majority of employees being employed on a full-time and/or part-time basis;
• predecessor awards put limitations on the duration of casual engagement within the industry and the award modernisation process replaced these limitations with the 6-month casual conversion provisions that have operated to ensure low levels of casualisation are maintained within the industry, as evidenced by ABS data;
• extending the period of conversion to 12 months may have a detrimental impact on the industry as a whole and operate as an incentive for employers to casualise their workforce;
• construction projects within the industry typically have a duration period of 2 to 3 years and an employee’s length of engagement is necessarily a shorter period;
• on projects of 2 years or less, an employee may never achieve 12 months’ service in order to qualify for casual conversion and, even should they, will likely still be unable to convert given the defined grounds for refusal in the NES provision; and
• the NES entitlements are detrimental to employees and inconsistent with the modern awards objective and, contrary to the modern awards objective, employees who are currently engaged for less than 12 months under the award and may presently be entitled to casual conversion, may lose that right if the NES entitlements are adopted.
[24] The Australian Workers’ Union (AWU) supported the submissions of the CFMMEU in relation to the Building Award, 19 and also opposed the deletion of the current casual conversion clauses from the Concrete Products Award, the Cement Award and the Sugar Award.20 The AWU submitted that the detriment associated with losing access to casual conversion after six months of employment appears to outweigh the improvements that may arise for employees under the NES casual conversion provisions. The AWU submitted that the introduction of casual conversion conditions into the NES was intended to provide a universal minimum standard for national-system employees and submitted that the explanatory documents and other background materials associated with the ‘IR Working Groups’ process suggest this type of substantive reduction in existing conversion conditions would be an unintended consequence of the amendments.
[25] The United Workers’ Union (UWU) opposed the Full Bench’s provisional view that clause 10.8 of the Food Manufacturing Award be replaced with the proposed clause referencing the casual conversion NES entitlements. 21 The UWU submitted that the variations to the Food Manufacturing Award should preserve the existing entitlement to require casual conversion after 6 months of engagement. It proposed this could be achieved by replacing clause 10.8 with an altered version of the NES conversion clause which would include:
(a) replacing ‘12 months’ references at s.66B(1)(a) and (2)(c) with ‘6 months’; and
(b) amending s.66B(2)(a) to read ‘During that 6 month period, the employee has worked a regular pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to work as a full-time employee or a part-time employee (as the case may be).
[26] The UWU accepted that the casual conversion entitlement of the Food Manufacturing Award largely replicated that of the Manufacturing Award. It submitted that although particular elements of the NES provision may be more beneficial than those of the Food Manufacturing Award, the benefit of those entitlements are marginal and/or relative to the particular circumstances of an employee. The UWU submit that the ability to access casual conversion at 6 months of engagement under the Food Manufacturing Award is significantly more beneficial than the requirement for 12 months’ minimum service under the NES. The UWU submit that employees in the relevant Food Manufacturing Award industries use this entitlement, at or near to the point of 6 months of engagement.
[27] The UWU submitted that where an award casual term is more beneficial than the NES provisions, the Commission can preserve those particular terms, given that the ‘ancillary and supplementary terms’ to the NES may be included in awards, where those terms are not detrimental to employees, in accordance with s.55(4) of the Act. It further submitted that the utilisation of the 6 months’ conversion provision should be a consideration that supports the preservation of this entitlement in the Food Manufacturing Award and that doing so would not increase the regulatory burden on industry employers and has no detriment to the employee. Should the Commission consider that there is a regulatory burden or complexity created, the UWU submitted that these considerations should be outweighed by the particular circumstances of the Food Manufacturing Award, namely the current use of the 6 months’ trigger provision and the increasing rates of insecure work across the industries covered by the award.
[28] The UWU relied upon two witness statements in support of its submissions. The first statement was made by Pareen Minhas, 22 an industrial officer employed by the UWU. In her statement, Ms Minhas described the workforce in the food and beverage industry as highly casualised, low-paid and award-dependent to a significant degree, and focused in that respect on the growth of the ‘ready-made meals’ sub-industry over recent years. She referred to two companies in the industry in particular as having predominantly casual workforces.
[29] The second statement was made by Margaret Joyce Te Awa, 23 who is an organiser employed by the UWU. She also described the extent of casualisation in the food and beverage industry and in the ‘ready-made meals’ sub-industry in particular. She also referred to a ‘secure jobs campaign’ run by the UWU in 2018 for workers employed by Youfoodz, a ‘ready-made meals’ business. She gave evidence that this campaign resulted in ‘a casual conversion system and $1.6 million in backpay’, with the casual conversion system relying on clause 10.8 of the Food Manufacturing Award and being available to employees who have been employed for 6 months, worked regular hours (averaging a minimum of 18-30 hours per week) and have a good absentee record. Ms Te Awa described this process as tending to work automatically upon application by the employee, and she referred to one employee by name who recently converted after approximately 6 months. She also referred to four other employees who were able to convert after advocacy on their behalf by the UWU. Ms Te Awa also described a similar campaign run for the workforce at Country Chef, another ‘ready-made meals’ business, which resulted in the UWU ‘winning a casual conversion system’ making conversion available for employees who have worked 500 hours across a 6 month period. Neither Ms Minhas nor Ms Te Awa were required for cross-examination.
[30] The Australian Manufacturing Workers’ Union (AMWU) also opposed the provisional view concerning the casual conversion clause in the Food Manufacturing Award. 24 The AMWU submitted that the capacity to request conversion after 6 months’ regular casual conversion represents a benefit so favourable when compared with the NES entitlement that it outweighs the countervailing considerations expressed by the Commission in the July 2021 decision in relation to the Manufacturing Award.
[31] The AMWU submitted that it objected both to the substantive conclusion reached in the July 2021 decision and the procedure undertaken by the Commission to arrive at this conclusion. In relation to the superior benefits of the NES provisions found to exist in the July 2021 decision, the AMWU submitted that:
• it is more beneficial for an employee to be informed of a right to request conversion at a point that is closer in time to when the employee will be able to exercise that right, as under the award clause;
• it did not dispute that the residual nature of the NES right is more beneficial than the one-off right provided for in the Manufacturing Award clause; and
• the differences concerning the period in which the employer may respond to a request and the grounds upon which a request may be refused are marginal and not enough to tip the balance in a weighing exercise about the benefits to employees and employers.
[32] The AMWU complained that the approach taken whereby the Commission drew an inference from the lack of evidence concerning the degree of benefit of being able to convert after only 6 months’ employment ‘offends principles of procedural fairness’, given the Full Bench had reached the provisional view that in this respect the award clause was more beneficial than the NES entitlement, and that it was not appropriate in the circumstances for the Full Bench to draw the inference that this was not of significant benefit to employees. The AMWU submitted that the correct approach to this review was to ascertain whether the Manufacturing Award, together with the NES, provided a fair and relevant minimum safety net of terms and conditions, taking into account the relevant factors contained within s.134(1). Any term necessary to achieve the modern awards objective had to be included in the award, as mandated by s.138, and there was no discretion once it was established that a term is necessary to meet the objective. It was further submitted that the Full Bench did not, in making the July 2021 decision, have the appropriate material before it to properly draw the conclusions relied on to support the finding that the entitlement was not necessary to meet the modern awards objective. The AMWU’s submissions reviewed the matters required to be taken into account under s.134(1) and, in relation to ‘the needs of the low paid’ (s.134(1)(a)), the AMWU submitted that ‘[i]t is self-evident that a clause that provides an entitlement to request an earlier escape from this insecure and relatively lower paid employment arrangement must be a consideration of great weight’. In summary, the AMWU submitted that the NES, considered as a whole, does not provide a scheme of entitlements more beneficial or greater than that provided for by clause 10.8 of the Food Manufacturing Award, and that the retention of the 6-month threshold is necessary to provide a fair minimum safety net of terms and conditions and outweighs any increase in the regulatory burden upon employers.
[33] The AMWU advanced the same submissions in opposition to the provisional view expressed in relation to the casual conversion provision in the Graphic Arts Award and the Vehicle Award. 25 In respect of all these awards, the AMWU submitted that the existing casual conversion provisions should be replaced with a reference to the NES provision but leaving the 6-month threshold in place.
[34] The AMWU filed 7 witness statements in support of its submissions:
• Alby Dyminski,26 a process and production employee of the SPC Ardmona cannery in Shepparton in Victoria, gave evidence concerning his experience as a seasonal worker there. He commenced employment there in about 1980 as a summer seasonal worker, as a second job. By 2011 it had become his main job and he was working 11 months per year there. In May 2012 he applied for conversion to full-time work, but this was rejected in March 2013. He disputed this in the Commission and SPC eventually offered him a full-time role.
• Darren Bathman27 is a casual process worker at SPC Ardmona in Shepparton. He commenced as a casual there in 1998. Since about 2006, he has been getting about 8-9 months’ work per year. He was informed some years ago that there was an entitlement to request to convert to permanency under the enterprise agreement which applied at the site. He has requested conversion on at least 4 or 5 occasions and has been refused each time.
• Helen Fawke28 is a bag machine operator at the Lilydale site of the Yarra Valley Snack Food Company in Victoria. She has worked there for about 4 years, starting as a full-time casual. She knew from the start of her employment that she was entitled to request conversion at 6 months under the Food Manufacturing Award. She requested conversion to permanency at around the 6-month mark or perhaps even earlier, and she was converted to permanent employment. She said that she had noticed an increase in the use of labour hire workers, and expressed the opinion that this seemed to be as a reaction to the fact that casual workers are able to make the request to be made permanent.
• Jason Hefford29 is an official of the AMWU in Victoria. He gave evidence that the food industry often provides low paid and insecure unskilled work. He described an episode at the SPC Ardmona factory at Mooroopna in Victoria in 2008, when he and the AMWU supported seasonal workers to make requests for conversion to permanency. He said that from 2008 to the present day, the AMWU has supported 160 applications for permanency of which 82 had been successful. He said this took a ‘massive organising effort’ on the part of the AMWU.
• Jessica Rea30 has been employed as an operator by Simplot Pty Ltd at Kelso in New South Wales since 2011. She has applied for conversion to permanency on many occasions and been rejected. After ten years of casual employment, she was able to convert to permanent employment in July 2021, with the issue having been in dispute for 12 months. She described in her statement the importance of conversion to her, including in respect of obtaining a loan and organising childcare.
• Michelle Odonnell31 is also employed by Simplot at Kelso. She has been a casual factory operator since 2011. She has requested conversion to permanent employment at every possible opportunity but has been rejected every time, and remains a casual employee.
• Nicole Coppock32 is an organiser employed by the AMWU in South Australia. In her witness statement, she described dealings she had had with Repco Pty Ltd, a retail company in the vehicle industry, concerning casual conversion. She said that casual employees of Repco had been completely unaware of their entitlement to request conversion until she informed them, and Repco had not been communicating with them about their entitlement under the Vehicle Award. She said that casual employees were very interested about requesting to convert at the 6-month mark, and she was able to successfully convert a number of casual employees at 6 months.
[35] None of the above witnesses was required for cross-examination.
[36] The Shop, Distributive and Allied Employees’ Association (SDA) also opposed the provisional view with respect to the Vehicle Award. 33
[37] The Australian Council of Trade Unions (ACTU) opposed the provisional view that casual conversion clauses providing an entitlement to convert after a qualifying period of 6 months should be removed from the 12 awards and replaced by a reference to the NES entitlements in the Act. The ACTU supported its affiliates’ submissions favouring retention of the entitlement to convert from casual to permanent employment after 6 months. 34
Submissions of employer organisations
[38] The Australian Industry Group (Ai Group) agreed with the provisional views expressed by the Commission that the casual conversion provisions in each of the 12 abovementioned awards should be removed and substituted with a reference to the casual conversion entitlement in the NES. 35 It submitted that none of the arguments raised in the unions’ submissions should dissuade the Commission from the provisional view that the existing casual conversion provisions should be replaced with a reference to the NES, as determined in respect of the Manufacturing Award in the July 2021 Decision. It also submitted that the witness statements filed by the unions should be given little weight by the Commission.
[39] The Ai Group made submissions outlining the importance of the Commission generally following previous Full Bench decisions. Ai Group submitted that, based on the compelling policy considerations concerning the principles of stare decisis in the context of the Commission’s decision-making discussed in the Four Yearly Review Preliminary Jurisdictional Issues Decision, 36 it would be remarkable if the July 2021 decision was not followed given that the July 2021 decision was made in the same proceedings about essentially the same casual conversion matters. Citing a Statement issued by the President on 9 April 2021,37 the Ai Group submitted that the process devised for the conduct of the Casual Terms Award Review 2021 was designed to deal with key issues of contention, including ‘whether award-specific casual conversion clauses should be retained in some form, or replaced with a reference to the new casual conversion National Employment Standard’ in Stage 1 and to achieve as much consistency as possible in decision-making regarding the treatment of ‘relevant terms’ in awards. It submits the unions did not disagree with this process at the Conference on 15 April 2021 and notes the process was subsequently confirmed in Directions issued on 19 April 2021.
[40] Ai Group submitted that the submissions and evidence provided by the unions do not establish why the key conclusions of the Commission in the July 2021 decision concerning clause 11.5 of the Manufacturing Award do not apply with equal force to these 12 awards, and that arguments raised in the unions’ submissions had already been comprehensively addressed by the Commission during Stage 1 of the Review and rejected in the context of the Manufacturing Award. For similar reasons, those arguments should be rejected in respect of these 12 awards.
[41] Australian Business Industrial and the NSW Business Chamber (ABI) supported the provisional views that the casual conversion clauses in the 12 awards be deleted and replaced with a reference to the NES casual conversion entitlements. 38 ABI agreed that these clauses are in substantially the same form as the casual conversion clause contained in the Manufacturing Award, and it supported the findings of the Full Bench in the July 2021 decision in respect of avoiding the uncertainty and difficulty that may arise from concurrent and different casual conversion regimes being present in the NES and in awards. In respect of materials filed by other parties opposing the provisional views concerning the casual conversion provisions of these awards, ABI submits that these are not sufficient to displace the reasoning underpinning the provisional views.
[42] In response to the CFMMEU’s submissions, the Housing Industry Association (HIA) submitted that the CFMMEU had provided no cogent evidence to convince the Commission to depart from its provisional views, the CFMMEU’s proposals would cause compliance issues, confusion and complexity and that the CFMMEU was trying to re-litigate matters that have already been considered. 39 The HIA submitted that the Commission had already rejected the submission that the qualifying period in a casual conversion clause should be 6 months instead of 12 months, and the issues raised by the CFMMEU did not specifically relate to casual employment or the operation of the casual conversion clause in the residential construction industry.
[43] The HIA supported the approach set out in the July 2021 decision and asked the Commission to adopt the same approach with respect to the Building Award and the Joinery Award. It submitted that the purpose of the proceedings was to deal with matters brought to bear by the Amending Act and that historical matters or facts arising prior to award modernisation should not be considered because such matters had been raised in earlier proceedings. The HIA submitted that beyond these matters, no substantive evidence had been raised indicating why the Joinery and Building Awards should be treated differently to other awards, including the Manufacturing Award. No evidence had been provided to substantiate the CFMMEU’s assertions that a different approach to the Joinery and Building Awards was warranted because employers were manipulating casual employees or avoiding providing permanent employment. It was submitted that the CFMMEU’s proposed casual conversion clause cherry picked elements of the current award clauses and combined them with elements of the NES provision, and ignored the Commission’s view that it would be unfair to ‘cherry pick’ an existing provision to the benefit of employees and discard any balance between employee and employer rights.
[44] The HIA submitted that submissions by the CFMMEU based on distinguishing features of the construction awards are largely irrelevant because they do not raise matters that fall within the factors for consideration set out in the July 2021 decision. It submitted the Commission should not consider such factors raised by the CFMMEU and instead confine its decision to the relevant factors stated in clause 48(2) of Schedule 1 of the Act. The HIA opposed the CFMMEU’s alternative proposal to insert a limitation on how long an individual can be engaged as a casual, since this might be detrimental to employees and would reinstate a provision from a bygone era that is not reflective of current workplace practices and is at odds with the modern awards objective and the intent and object of the Amending Act.
[45] The HIA did not accept the CFMMEU’s submission that casual employment is the only form of work on offer in the residential construction industry. It submitted that the Commission should disregard the advertisements for casual construction jobs provided by the CFMMEU because they were not relevant to proceedings. However, if the Commission were to give such material any weight, the HIA submitted that on 27 August 2021, Seek advertised 5909 full-time, 38 part-time, 777 contract/temp and 588 casual/vacation ‘construction industry’ roles in Australia. It further submitted that the CFMMEU had not provided any substantive evidence to support claims that casual employees are not able to obtain permanent employment by directly applying for a full-time role or because employers are avoiding their obligations, and the witness statements of Mr Cross and Mr Davies contained inaccuracies and were largely statements of opinion.
[46] Master Builders Australia (MBA) also supported the provisional views expressed by the Commission in the 3 August statement with respect to the Building Award and Joinery Award. 40 It submitted that these awards should be varied to reflect the provisional views without amendment, and that this was the most effective way to satisfy the task created by clause 48 of Schedule 1. In support of its position, MBA submitted that the provisional views apply the same rationale and reasoning to these awards as that applied to the like provisions in the Manufacturing Award, the implementation of the provisional views would improve the operation and overcome any confusion or questions as to the interaction of the construction Awards in the context of the broader Fair Work regime, and that there were no grounds for the Commission to deviate from its provisional approach or industry or award-specific circumstances that warrant accommodation.
[47] MBA submitted that the Commission should reject the CFMMEU’s submission on the basis the reasoning repeats matters that have previously been rejected by the Commission in earlier stages of this review. It submitted the CFMMEU’s supporting material should be rejected or given no weight as it is either irrelevant, outside of scope, or pertains to matters already dealt with at earlier stages of this review. It submits the alternative draft proposed by the CFMMEU cherry picks a provision that existed in a pre-modern award that operated under a different legislative regime which is either no longer relevant or applicable. MBA submitted that the CFMMEU’s claims concerning the award history and extent of casual engagement in the industry had no bearing on the scope of this review and should be rejected, and were not evidenced by materials said to be filed in support. MBA further submitted that no union raised this as a consideration relevant to the review of the Stage 1 awards and, citing ABS - Forms of Employment (cat. no. 6359.0) and Employee Earnings, Benefits and Trade Union Membership (cat. no. 6310.0), noted that a number of industries covered by the Stage 1 awards feature casual engagement to a much greater extent compared to the building and construction industry.
[48] MBA submitted that the respective benefits of the casual conversion provisions within the Manufacturing Award (and therefore the corresponding clauses within the Building Award and the Joinery Awards) compared to the NES had already been evaluated and determined by the Commission in the July 2021 decision, and it followed that the Commission should apply the same rationale to clauses 13 and 12 of the Building and Joinery Awards respectively. MBA opposed the CFMMEU’s alternative draft variation determination on the basis that replication of provisions from the pre-modern award instruments would have the effect that an employee cannot be employed on a regular and systematic basis for longer than six or twelve weeks respectively. It submitted that, notwithstanding that the Commission had already determined this question in Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union 41, the context and classifications of pre-modern award casual provisions were different to those within the existing award, and in particular the National Building and Construction Industry Award contained strict limitations on the period for which casuals could be engaged because of unique circumstances existing at that time about the terms of engagement and type of work classification. These circumstances are not relevant to the modern award in any way.
[49] The Motor Trades Organisations 42 supported the provisional view concerning the casual conversion provisions in the Vehicle Award.43 In response to the AMWU case, they submitted that the witness statement of Nicole Coppock was anecdotal and had little if any probative value and that, to the extent that the evidence was of relevance, it showed that casual employees will generally not be in a position to exercise a right to request casual conversion prior to 12 months due to not meeting the regular pattern of hours threshold under s.66F(1)(b) of the Act or the necessary sequence of periods of employment as a non-irregular employee under the Vehicle Award itself.
[50] Country Press Australia supported the provisional view with respect to the casual conversion provision in the Graphic Arts Award, and opposed the AMWU’s submission that a different approach should be taken for that award. 44
Consideration
[51] It is necessary at the outset to recall that the task at hand is to conduct the review of casual award terms required by clause 48 of Schedule 1 of the Act. Where a modern award contains a relevant casual term of the type specified in clause 48(1)(c) which is not consistent or gives rise to interaction difficulty or uncertainty with the Act, clause 48(3) requires the Commission to make a determination varying the award to make the award consistent or operate effectively with the Act. We have earlier set out the 9 key findings made by the Full Bench in the July 2021 decision which caused it to conclude that the casual conversion provision in clause 11.5 of the Manufacturing Award should be deleted and replaced with a reference to the NES casual conversion provisions. No party has challenged or asked us to revisit findings (4) and (5), namely that clause 11.5 is not consistent and gives rise to interaction difficulty and uncertainty with the Act. That means that a variation to the Manufacturing Award is required by clause 48(3) and, again, there is no challenge to finding (6) that clause 11.5 of the Manufacturing Award cannot stay as it is. There is also no challenge to finding (9) that the course which the Full Bench determined to take in the July 2021 decision would remove the inconsistency and interaction difficulty. All these findings would apply equally to the casual conversion provisions in the 12 awards we are considering here, which are the same or virtually the same as clause 11.5 of the Manufacturing Award, and no party suggested otherwise.
[52] That being the case, the only question we need to consider is whether there is some alternative course which we should take to remove the accepted inconsistency and interaction difficulty in the 12 awards other than that taken in the July 2021 decision and preferred in our provisional views. This review is not an opportunity to engage in some broader assessment of casual employment in the industries covered by the awards in question and to consider award variations to address what are contended by the union parties to be detriments to employees arising from the (alleged) increasing use of casual employment in those industries. We note that a broad and detailed consideration of casual employment was conducted in the Part-time and casual employment common issue proceedings as part of the 4 yearly review of modern awards, and the principal outcome of those proceedings was the development of a model casual conversion clause with a 12-month qualification period, with the model clause being inserted in the large majority of modern awards. We further note that it remains open to any of the union parties which have made submissions in this matter to make an application pursuant to s.158(1) of the Act, supported by a proper merits case, to vary one or more modern awards to address some of the broader issues concerning casual employment which have been raised in the evidence and submissions before us. However, all that goes well beyond the fairly narrow task which the Commission is required to undertake pursuant to clause 48 of Schedule 1.
[53] The primary alternative award variation proposed by the unions to address the accepted inconsistency and interaction difficulty which arise from the casual conversion clauses in the 12 awards is to delete those clauses and to replace them with a new award entitlement which effectively reproduces the scheme of the residual right to request casual conversion in Subdivision C of Division 4A of Part 2-2 of the Act, but modified so that the requirement in s.66F(1)(a) for 12 months’ employment before such a request can be made is changed to 6 months. The CFMMEU proposal goes further and seeks also to incorporate the requirement for employer offers for casual conversion in Subdivision B into the construction awards, but with the 12 months’ employment criterion in s.66B(1)(a) changed to 6 months. These alternatives are advanced primarily on the basis that the capacity under the Manufacturing Award-type casual conversion clauses to convert after six months’ employment is such an overwhelming advantage to employees that it must be preserved in order to maintain the integrity and fairness of the award safety net.
[54] However, this alternative approach has a number of fundamental problems, all of which were articulated in the July 2021 decision.
[55] First, under the casual conversion clauses in all 12 awards, as with the Manufacturing Award, the entitlement to request conversion is only conferred on a casual employee who is not an ‘irregular casual employee’ and who has been engaged for ‘a sequence of periods of employment … during a period of 6 months’. An ‘irregular casual employee’ is one engaged to perform work on an occasional, non-systematic or irregular basis. 45 That is, only regular or systematic service as a casual counts in respect of the 6 months’ requirement. This is not the same thing as the requirement in s.66F(1)(a), which simply measures the temporal requirement of 12 months from the day the employment started. Thus, the total period of casual employment may be well in excess of 6 months before the employee enjoys a 6-month period of regular or systematic casual employment. Under the award clauses therefore, a casual employee will only be entitled to request conversion 6 months after the commencement of their employment if their employment was regular or systematic from ‘day one’.
[56] In the July 2021 decision, the Full Bench said that ‘[e]xperience would tend to suggest that this may not be common’. 46 The evidence adduced by the unions before us bears this out. The evidence of Mr Dyminski and Mr Bathman described a history of casual employment which for many years was merely seasonal in nature and could not have satisfied the requirement for 6 months’ regular employment. The evidence of Ms Rea and Ms Odonnell was less clear about the circumstances of their employment, but it can reasonably be inferred that they did not meet the criteria to request casual conversion in the first 6 months’ of employment and, in Ms Odonnell’s case, may still not have met the criteria after a decade of employment. The situation described by Ms Fawke is distinct because she commenced her casual employment on a full-time basis and thus was able to meet the criterion of 6 months’ regular casual employment 6 months after she first started. The evidence of Ms Te Awa concerning the UWU’s campaigns at Youfoodz and Country Chef does not appear to bear directly on the question, since the UWU appears to have been successful in achieving bespoke casual conversion systems with their own criteria, albeit that it is likely that the award clause was used as a leverage point on obtaining that result.
[57] We conclude from this that, for most casual employees covered by the 12 awards in question, the 6-month criterion for requesting conversion under the award clause is likely not to be an advantage at all when compared to the NES residual right to request conversion, because the criterion will probably not be met in the first 6 months or even 12 months of employment. Despite this matter being the subject of finding (4) in the July 2021 decision, the unions’ submissions simply did not address this issue and proceeded on the unsound assumption that the award clauses would permit conversion to be requested sooner than under the NES provisions.
[58] Second, in 9 of the 12 awards (i.e. not including the Textile Award, the Electrical Contracting Award and the Graphic Arts Award), the casual conversion clause contains a provision in the same terms as clause 11.5(j), which allows the criterion of 6-months’ regular casual employment to be extended to 12 months by majority agreement at the workplace or by individual agreement with a casual employee. If this provision is utilised, it not only renders what is said to be the comparative advantage of the award clauses over the NES provisions illusory, but creates a positive disadvantage in that 12 months’ regular casual employment becomes the requirement as against the NES requirement for 6 months’ regular employment after a minimum period of 12 months’ total employment. Again, the unions’ submissions bypassed this issue entirely, despite the fact that it was the subject of finding (4) in the July 2021 decision, and proceeded on the false assumption that the award clauses in issue are simply based on a 6 months’ employment criterion. Nor was any evidence adduced about the extent to which employers have utilised the facilitative provision.
[59] Third, the unions’ alternative proposals are advanced under the guise of preserving the status quo, but in reality they do not seek to preserve the existing provisions, or even the essential elements of the existing provisions, but rather would create something entirely new. The existing provisions provide a one-off opportunity to request conversion after 6 months’ regular casual employment, extendable to 12 months (except in the case of the Textile Award, the Electrical Contracting Award and the Graphic Arts Award). The alternatives proposed provide for an ongoing opportunity to request conversion after 6 months’ regular employment and seek to incorporate all of the more beneficial aspects of the statutory provisions which were identified in finding (1) into an award term. The CFMMEU proposal goes even further and seeks to incorporate the NES requirement for employers to offer casual conversion into the award, but with a 6 months’ employment criterion. No provision of this nature has ever appeared in any of the 12 awards. Finding (8) in the July 2021 decision explained why this approach was not tenable. The unions’ submissions have not attempted to demonstrate why this finding was wrong but, again, have simply ignored it. The limited review which clause 48 of Schedule 1 requires to be conducted is not the proper avenue for the advancement of proposals for entirely new award entitlements. As earlier stated, parties which wish to pursue claims of this nature should make an application pursuant to s.158(1) and present a full merits case in support of such an application to the Commission.
[60] The second alternative proposal advanced by the CFMMEU, whereby the existing casual conversion clauses in the construction awards should be removed and replaced by the temporal restrictions on the engagement of casual employees which existed in industry awards prior to award modernisation, is rejected. It is trite to say that our provisional view that the existing casual clauses should be removed is not intended to abolish casual conversion rights altogether but simply acknowledges that those clauses conflict and give rise to interaction difficulties with the superior statutory scheme for casual conversion which now exists. Thus, there is no basis to return to the industrial position which existed in the construction sector before any casual conversion rights existed.
[61] It is not necessary beyond this point to address all the matters raised by the unions in their submissions except to say that their various criticisms of the statutory scheme either simply repeat matters already addressed in the July 2021 decision or point out deficiencies that also exist in the award casual conversion schemes. For example:
• The CFMMEU submitted that there is nothing in the statutory scheme that restricts an employer from engaging and re-engaging a casual employee to avoid casual conversion, unlike clause 11.6 of the Manufacturing Award. This issue was addressed in the July 2021 decision at [201], albeit in the context of the model clause. A protection at least equivalent to clause 11.6 is provided for in s.66L(1) of the Act. The general protections provisions in Pt.3-1 of the Act also provide additional protection.
• The CFMMEU submitted that the NES provisions did not require the employer to make a genuine attempt to reach agreement as to conversion. However, s.66M(2) of the Act contemplates that, for award-covered employees, the award’s dispute resolution procedure is to be used. Such procedures (for example, clause 42.1 of the Manufacturing Award) generally require the parties to attempt to resolve the matter at the workplace level by discussions. As discussed in the July 2021 decision at [212]-[215], the implementation of our provisional view will involve the inclusion of a note in each award to the effect that the dispute resolution procedure of the relevant award is to be utilised to resolve disputes about casual conversion under the NES.
• The CFMMEU, in relation to the Textile Award, submitted that the statutory scheme was deficient because, in the context of a workforce which to a significant degree does not speak English as a first language or at all, the Casual Employment Information Statement by which employees are to be informed of their rights has only been published in English. However, the written notice to inform employees of their casual conversion rights required by clause 11.12(b) of the Textile Award, does not have to be in anything other than English.
[62] We are not persuaded to depart from the provisional views we have earlier expressed concerning the casual conversion clauses in these 12 awards. We confirm our provisional views, and the awards will be varied consistent with those provisional views.
Building and Construction General On-site Award 2020
[63] In the 3 August statement, we expressed the provisional view that clause 12.1 of the Building Award, which defines a casual employee as one engaged and paid in accordance with the provisions of clause 12, should be removed and, instead, a new definition which refers to the statutory definition of a casual employee in s.15A should be added to clause 2, Definitions of the Building Award. No party opposed as such this provisional view, but the Ai Group submitted that the new definition should also say: ‘A daily hire employee is not a casual employee’. We do not intend to take the course proposed by the Ai Group, since there is nothing in the Building Award which suggests that a daily hire employee might be encompassed by the definition of a casual employee in s.15A, nor has any party suggested that this might be the case. Further, if a daily hire employee does fall within the s.15A definition, the modified award definition could not operate to alter that position. We confirm our provisional view.
[64] In the 3 August 2021 statement we expressed the provisional view that clause 11.6 of the Broadcasting Award was less beneficial than the NES casual conversion provision and should be deleted and replaced with a reference to the NES provision.
[65] On 9 August 2021, Birch Carroll and Coyle and other cinema industry employers (Cinema Employers) filed a submission noting that the Broadcasting Award differs from the model casual conversion clause in that, at clause 11.6(k)(ii), it specifically addresses employees in cinemas and provides that, upon conversion to part-time, employees will be covered by the same award conditions as all other part-time employees in cinemas. 47
[66] The Media, Entertainment and Arts Alliance (MEAA) submitted that it supported our provisional view. In response to the position of the cinema employees, MEAA submitted that no evidence had been brought to support the assertion that the variation would reduce cinema operators’ ability to flexibly manage part-time employees. 48
[67] In its submission in reply to the MEAA, 49 the Cinema Employers submitted that they agreed with the MEAA in supporting the provisional view, subject to the insertion of a new paragraph (e) to clause 57.3 of the Broadcasting Award as follows:
“(e) subclauses 57.3, 58.3 and 59.4 apply to all part-time employees including part-time employees who have converted from casual employment pursuant to Division 4A of Part 2-2 of the Act.”
[68] The Cinema Employers submitted this proposed amendment is required to preserve the effect of the Broadcasting Award as presently expressed so that casual employees in cinemas converting to part-time employment are on the same award conditions as all other part-time employees in cinemas.
[69] At the hearing conducted on 6 September 2021, we raised with the Cinema Employers whether the new provision proposed by the Cinema Employers was necessary, given that the provisions of Part 10 of the Broadcasting Award relevant to part-time employment would apply equally to persons who become part-time employees as a result of conversion from casual employment. After considering their position, the Cinema Employers sent an email to the Commission containing the following statement:
“The cinema employers having noted the views expressed today by the Commission and Counsel for MEAA accept that the provisions as to hours of work and rosters of Part 10 of the Broadcasting Recorded Entertainment and Cinema Award will continue to apply to employees who convert to part-time employment pursuant to s.66B of the FW Act. Accordingly, the cinema employers do not press for a variation of the award and request that this statement be recorded in the Decision of the Full Bench.”
[70] Counsel for the Cinema Employers confirmed later in the hearing that this statement now represented the Cinema Employers position, and clarified that it was not intended to convey that this position was agreed with the MEAA. In the circumstances, it is not necessary for us to consider further the matters raised in the parties’ submissions except to say that we consider the statement above to correctly reflect the position that casual cinema employees to whom the Broadcasting Award applies and who convert to part-time employment pursuant to the NES casual conversion provisions will be subject to the provisions of Part 10 of the Broadcasting Award pertaining to part-time employment. We confirm our provisional view, and the award will be varied in the way indicated.
[71] In the 3 August statement, we expressed provisional views about a number of provisions in the Meat Award and, additionally, identified a number of issues about which we expressed no provisional view and invited further submissions. Written submissions in response were filed by the Australasian Meat Industry Employees Union 50 (AMIEU) and the Ai Group,51 and both of these parties also made oral submissions during the hearing before us on 6 September 2021. Those matters where our provisional view was contested, or about which we expressed no provisional view, are dealt with below. We confirm those provisional views which were not contested, and the Meat Award will be varied consistent with those views.
[72] In the 3 August statement, the Full Bench invited submissions in response to the following observations:
“[50] On one view, daily hire employees fall within the statutory definition of casual employment in s.15A of the Act because, even though daily hire employment may arguably be offered and accepted on the basis of an advance commitment to ‘continuing and indefinite work’, the commitment does not extend to any agreed pattern of work since the employer can elect when to offer work by notifying the employee not to attend work under clause 11.9 or by refusing their ‘offer’ of employment if the employee does attend. If this is correct, then:
• the simple inclusion of a reference to the statutory definition of a casual employee in clause 12.1 may inadvertently make the provisions of clause 12, including the 25% casual loading in clause 12.9(a)(ii), applicable to daily hire employees; and
• daily hire employees are not in fact entitled to the NES benefits applicable to non-casual employees, meaning that if they are to receive such benefits, they must separately be provided for in the award itself.
[51] An alternate view might be that daily hire employees do not fall within the casual employment definition in s.15A because they have an advance commitment to continuing and indefinite work, with an agreed pattern of work comprised of the requirement under clause 11.9 for employees to attend for work each ordinary day at the usual starting time, unless notified otherwise under clause 11.9, and the minimum engagements prescribed by clause 11.3 or 11.4 (as applicable) whenever work is performed.
[52] Whether clause 11 is a relevant term and whether it is inconsistent with or gives rise to any interaction difficulty is largely dependent on which of the above alternative views is correct. This issue may have consequential effects for a number of clauses of the Award including clauses 8.1, 8.2, 18.9, 25.1, 26, 28, 35 and 36.”
Ai Group
[73] The Ai Group submitted that clause 11 of the Meat Award does not deal with casual employment and is not a ‘relevant term’ for the purposes of clause 48 of Schedule 1 of the Act. Agreeing with the characterisation of daily hire employees set out at paragraph [51] of the 3 August Statement, the Ai Group submitted that daily hire employment does not fall within the statutory definition of casual employment in s.15A of the Act because the definition is principally concerned with the basis upon which an offer of employment is made by an employer to an employee and whether the employee accepts the offer on that same basis.
[74] In support of its position the Ai Group noted that s.15A(1)(a) requires a consideration of whether an offer of employment is made ‘on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work’ and s.15A(2) sets out the only matters to be considered in determining if an employer has made a ‘firm advance commitment’ of the requisite type.
[75] The Ai Group further argued that, in the context of daily hire employment, while an employer can elect to offer work, an employee is not free to accept or reject an offer for work in the sense contemplated by s.15A(1)(a) of the Act, the employment would not be described as ‘casual employment’, and the employee will not be entitled to a casual loading or a specific rate of pay for casual employment.
[76] The Ai Group submitted that daily hire employment is recognised as a distinctly different type of employment under the Act, clause 11 of the Meat Award, clause 9 of the Building Award and clause 9 of the Plumbing Award. It submitted that the recent amendments are not intended to alter the pre-existing delineation between casual employment and daily hire employment in the Act. In support of this, the Ai Group cited s.123 of the Act, emphasising the references to ‘casual employee’ at s.123(1)(c) and ‘daily hire employee’ in the building and construction and meat industries at ss.123(3)(a) and 123(3)(b). It also cited the Explanatory Memorandum for the Fair Work Bill 2008, which stated that various subclauses in s.123 list ‘categories of employees’ that are excluded from certain entitlements in the Act.
[77] The Ai Group also set out in its submissions some legislative history concerning the categories of casual employment and daily hire employment. It submitted that the Workplace Relations Act 1996 (WR Act) identified a ‘daily hire employee’ as a separate category of employee and in support cited s.638, emphasising that the kinds of employees referred to in the clause include ‘casual employee’ at s.638(11)(a) and ‘daily hire employee’ in the building and construction and meat industries at s.638(11)(b). The Ai Group further cited definitions of ‘daily hire employee’, as well as exclusions applying to ‘casual employees’ and ‘daily hire employees’, set out in the Industrial Relations Regulations (Amendment) (S.R. No. 386 of 1994) and the Workplace Relations Amendment (Fair Termination) Act 2003. It states that the relevant exclusions in the regulations were moved into the WR Act in 2003 in response to a decision by the Federal Court in Hamzy v Tricon International Restaurants 52 that the Regulations were invalid.
AMIEU
[78] In its response, the AMIEU submitted that daily hire employment is properly characterised as a hybrid mode of permanent employment, and not a form of casual employment. In this regard it notes that daily hire employees have a firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
[79] The AMIEU submitted that daily hire employment in the Meat Award must be understood in its historical context. In this regard, citing paragraph [29] of the Federal Meat Industry Decision (1999) 53, the AMIEU submitted that the meat processing sector is characterised by ‘intense competition, irregular flows of stock [and] seasonal variation in work volume’. Referring to AMIEU v Belandra Pty Ltd,54 the AMIEU submitted that daily hire developed as a special category of employment to enable meat processors to maintain a permanent workforce while remaining responsive to seasonal variations in stock availability. Citing a report published by the Productivity Commission in 199855 about work arrangements in the meat industry, the AMIEU submitted that daily hire employees are for all practical purposes permanent, however they can be stood down or terminated if no work is available, thus allowing employers flexibility to adjust their day-to-day labour force according to seasonal downturns. In return, daily hire employees are entitled to a loading of 10% above the ordinary rate payable to other permanent full-time and part-time employees.
[80] The AMIEU submitted that the Meat Award adopts the drafting device of distinguishing between the daily hire employees’ employment (which terminates at the end of each day or shift in accordance with clause 11.2 of the Meat Award) and engagement (which is continuous unless terminated by notice in accordance with clause 11.6 of the Meat Award) for the purpose of maintaining a permanent employment relationship while providing flexibility. In support, the AMIEU cited pages 4 and 5 of the judgment in The Queensland Meat Export Co v Hawkins 56 and emphasised in particular the Court’s statement that when an employee is engaged by an employer ‘they would have an expectation of future employment and income though subject to the vagaries of the weather and the availability of stock and the like, which influence the times at which work is actually done at meatworks’. The AMIEU submitted that the Court’s observations in Hawkins were quoted with approval by Drummond J in AMIEU v Central Queensland Meat Export Co57 and, citing paragraph [29] of the judgment, emphasised in particular Drummond J’s observation that the daily hire employee in that case ‘was retained by the respondent on the basis that he would continue to be in a relationship with it of ongoing engagement’.
[81] The AMIEU submitted that the intention in distinguishing between employment and engagement is that daily hire employment involves a firm advance commitment to continuing and indefinite work, albeit subject to the day-to-day vicissitudes of weather and stock availability which affect the days on which work is actually performed. Citing Re Federal Meat Industry Award 1981, 58 the AMIEU submitted that the practical result is that daily hire employees are ‘engaged for an indefinite period but are employed on a regular daily basis for as long as there is work available’. The AMIEU submitted that daily hire employment does not replace casual employment in meat processing establishments, rather both forms of engagement are available, and casual employment may be used to supplement a daily hire workforce.
[82] The AMIEU submitted that s.15A(2) provides a complete code for the determination of casual employment under the Act, submitting in particular that the use of the phrase ‘only to the following considerations’ emphasises the Parliamentary intention that the list is exhaustive and is intended to narrow the factors a Court may consider at common law in assessing whether an employee is engaged as a casual. In support it cited the Revised Explanatory Memorandum to the Fair Work (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 at [14]. Having regard to the factors in s.15A(2), the AMIEU presented an analysis of the terms defining daily hire employment in the Meat Award:
• Daily hire employees cannot elect to accept or reject work, they must report for work unless notified by the employer that they are not required.
• To the extent that daily hire employees are employed by the day or shift and their employment terminates at the end of each day, it may be accepted that they work as required according to the needs of the employer.
• The Meat Award does not describe daily hire employees as employed on a casual basis, rather, daily hire employment is identified as a separate mode of engagement.
• Daily hire employees are not entitled to the same loading or specific rate of pay applying to casual employees. The Meat Award provides separate entitlements for each of these types of employment, including a distinct loading for daily hire employees. The entitlement of daily hire employees to NES personal leave and annual leave is indicative of permanent employment.
[83] The AMIEU submitted that its analysis shows that none of the factors identified in s.15A(2)(a), (c) or (d) are satisfied by daily hire employment. It further stated that while s.15A(2)(b) is facially satisfied, this must be understood in light of the distinction between daily hire employees’ employment and engagement. Citing WorkPac Pty Ltd v Skene 59 at [173], it submitted that the mere fact that an employee works as required on a day-to-day basis (largely due to uncontrollable seasonal factors) is not suggestive of the uncertainty, discontinuity, intermittency, and unpredictability of work which usually indicate casual employment. It submits that this should not weigh in favour of concluding the definition of casual employment in s.15A(1) is satisfied.
[84] The AMIEU submitted that, regardless of the position reached by the Commission in this review, whether daily hire is a form of casual employment may remain open to legal challenge. It submitted that some moderate precautionary steps are appropriate to safeguard the entitlements of daily hire employees, given that the Meat Award does not expressly provide for the leave entitlements of daily hire employees and instead simply refers to the NES. It submitted that if daily hire employment were found to be a form of casual employment, the effect of ss.86 and 95 of the Act would be that daily hire employees are ineligible for leave entitlements which the Meat Award clearly contemplates they will receive. To avoid this, it was submitted that a new provision should be added to the definition of daily hire employment expressly confirming daily hire employees are entitled to annual leave and personal/carers leave in order to ensure employees have access to these entitlements as a term of the award even if no entitlement under the NES exists. To this end, the AMIEU proposed the following wording be inserted in clause 11.2:
“The daily hire employee is entitled to annual leave and personal/carers leave as provided for in the NES”.
Ai Group – submission in reply
[85] Ai Group submitted that it is not necessary to include additional wording clarifying that daily hire employees are entitled to annual leave and personal/carer’s leave because daily hire employees are not casual employees and therefore are not excluded from the relevant provisions of the NES.
[86] In the 3 August Statement, the Full Bench invited submissions on the following observations:
“[55] If, as earlier discussed, daily hire employees fall within the definition of casual employee in s.15A(1), then clause 8.4 may give rise to inconsistency or interaction difficulty between the Meat Award and the Act in two respects:
(1) Paragraphs (b) and (d) provide for a means of compulsory conversion in meat processing establishments from a form of casual employment (daily hire) to permanent employment (full-time or part-time) that is inconsistent or gives rise to interaction difficulty with the NES casual conversion provisions.
(2) Paragraphs (a) and (c) entitles an employer operating a meat processing establishment to convert permanent employment (full-time or part-time) to a form of casual employment (daily hire), including where the employee has become permanent as a result of exercising casual conversion entitlements. This may be inconsistent with or give rise to interaction difficulty with s 66K of the Act, which provides:
66K Effect of conversion
To avoid doubt, an employee is taken, on and after the day specified in a notice for the purposes of paragraph 66E(1)(c) or 66J(1)(c), to be a full-time employee or part-time employee of the employer for the purposes of the following:
(a) this Act and any other law of the Commonwealth;
(b) a law of a State or Territory;
(c) any fair work instrument that applies to the employee;
(d) the employee’s contract of employment.”
Ai Group
[87] The Ai Group submitted that clauses 8.3 and 8.4 are not ‘relevant terms’.
AMIEU
[88] The AMIEU likewise submitted that clauses 8.3 and 8.4 are not relevant terms.
[89] In the 3 August Statement, the Full Bench invited submissions on the following observations:
“[57] Clause 12.4 of the Meat Award provides:
12.4 Employment of a casual employee will terminate at the end of each day or shift.
[58] No clause in these precise terms was considered in the July 2021 decision. On one view, it is a provision which seeks to define casual employment in a manner similar to the ‘employment day-to-day’ type casual definitions discussed in [90]-[98] of the July 2021 decision. Such provisions were considered by the Full Bench to be relevant terms which give rise to an interaction difficulty within the meaning of cl.48(2)(b)…”
(footnotes omitted)
Ai Group
[90] In its submissions, the Ai Group stated that clause 12.4 should be deleted because, consistent with paragraph [58] of the 3 August statement, the provision seeks to define casual employment in a manner similar to the ‘employment day-to-day’ type casual definitions discussed in [90]-[98] of the July 2021 decision.
[91] Ai Group further submitted that clause 12.1 should be deleted and replaced with the following:
“12.1 casual employee has the meaning given by section 15A of the Act. A daily hire employee is not a casual employee.”
AMIEU
[92] The AMIEU agreed that clause 12.1 should be deleted and replaced with a reference to the statutory definition of casual employment. It also submitted that for the avoidance of doubt, the clause should state that a daily hire employee is not a casual employee.
[93] The AMIEU agreed that clause 12.4 raises similar concerns to the ‘day-to-day’ type casual definitions considered by the Commission at [90] to [98] of the July 2021 Decision. It submitted that clause 12.4 is unnecessary having regard to the proposed reference to the statutory definition and should be deleted.
[94] In the 3 August statement, the Full Bench invited submissions on the following observations:
“[59] The Meat Award contains two separate casual conversion provisions. In respect of non-meat processing establishments, the model casual conversion clause is contained in clause 12.13. Our provisional view, consistent with the July 2021 decision, is that this provision should be deleted and replaced with a reference to the NES casual conversion provisions.
[60] Clause 12.12 contains a modified version of the model casual conversion clause applicable to meat processing establishments which allows conversion from casual employment under the award (as presently defined) to daily hire employment…
….
[62] Consistent with the conclusions in the July 2021 decision, clause 12.12 is clearly a relevant term and, to the extent that it is reflective of the model casual conversion clause, is likely to give rise to uncertainty and difficulty relating to the interaction between the Meat Award and the Act. However, the question as to what variation we should make pursuant to cl.48(3) to make the award consistent or operate effectively with the Act is connected with the issue earlier discussed of whether daily hire employment fails within the definition of casual employment in s.15A. If it does, the question is whether clause 12.12 should be retained in modified form to allow for a form of conversion not contemplated by the NES casual conversion provisions, namely conversion from one form of casual employment, namely casual employment as currently defined in the award, to another form, namely daily hire employment. If it does not, the questions are:
• Do the NES conversion provisions accommodate conversion from casual employment to daily hire employment?
• If so, should clause 12.12 be deleted and replaced with a reference to the NES provisions?
• If not, should clause 12.12 be retained in a modified form?”
Ai Group
[95] In their submissions, the Ai Group agreed with the provisional view, expressed at paragraph [59] of the 3 August Statement, that clause 12.13 of the Meat Award should be deleted and replaced with a reference to the NES casual conversion provisions.
[96] The Ai Group supported deleting clause 12.12 of the Meat Award and replacing it with a reference to the NES casual conversion provisions. In this regard, Ai Group submitted that employees covered by clause 12.12 are entitled to the casual conversion provisions in the Act and the inclusion of additional casual conversion entitlements in the Meat Award is unnecessary to achieve the modern awards objective and hence inconsistent with s.138 of the Act.
AMIEU
[97] The AMIEU disagreed with the Commission’s provisional view that clause 12.13 should be replaced with a reference to the NES casual conversion provisions. It submitted that a simpler and preferable alternative is to adopt a single casual conversion clause which covers both meat processing and non-meat processing establishments.
[98] It submitted that the NES casual conversion provisions do not accommodate conversion from casual to daily hire employment and expressed support for maintaining an option to convert from casual to daily hire in meat processing establishments, consistent with the observations of the Full Bench quoted at [61] of the 3 August statement.
[99] The AMIEU submitted that many processing establishments do not maintain full-time or part-time employees and only engage a daily hire workforce. At those establishments daily hire is the sole form of permanent employment (including access to NES leave entitlements) available to casual employees. The AMIEU submitted it is consistent with the statutory purpose of the NES casual conversion provisions to include an award-based pathway for casuals to request conversion to daily hire employment in such establishments.
[100] The AMIEU proposed replacing the current casual conversion clauses in the Meat Award with a provision to the following effect:
“12.12 (a) Casual conversion entitlements are provided for in the NES.
(b) Casual employees in meat processing establishments may request conversion to daily hire employment on the same terms provided in the NES for conversion to full-time or part-time employment.”
Ai Group – reply submission
[101] The Ai Group submitted in reply that it is not necessary to include the additional paragraph (b) proposed by the AMIEU, and that such a provision could lead to confusion amongst employers and employees about an employee’s rights under the NES. The NES rights, it was submitted, relate only to conversion to full-time or part-time employment, not daily hire employment.
[102] As a starting point to the resolution of the issues in contention identified above, it is necessary to characterise the nature of daily hire employment. It is clear that under the Meat Award as it currently stands, daily hire is treated as conceptually different to casual employment. The distinction is founded upon the fact that clause 12.1 defines a casual employee as ‘an employee who is engaged and paid as a casual employee’ (with the other provisions of clause 12 prescribing how casual employees are to be paid), so that it is sufficient for an employee to be engaged and paid as a daily hire employee for the employee not to be a casual employee. The industrial history of the daily hire employment provisions in the meat industry is consistent with this distinction.
[103] Clause 11.2 proceeds on the assumption that, because daily hire employees are not casual employees, they are entitled to the NES benefits concerning public holidays, personal/carer’s leave and annual leave. Clause 11.10 provides that daily hire employees are to be paid a daily rate of 20% of the minimum weekly rate plus a loading of 10%. We infer that the loading is payable on the basis that, whereas casual employees receive a loading of 25% to compensate them for, first, the fact that they do not receive NES paid leave benefits and, second, the intermittency and insecurity of their employment, daily hire employees are only compensated for the second of these matters because of the assumption that they are entitled to NES paid leave benefits (which are implicitly given a value of 15%).
[104] The proper operation of the daily hire employment provisions in the Meat Award in their current form is dependent upon the correctness of this assumption. If the assumption is wrong, then daily hire employees have no legal entitlement to the paid leave benefits which are intended to form an important part of their remuneration package and which distinguish them from casual employees engaged and paid pursuant to clause 12.
[105] It is not necessary for us to form a view about whether the assumption was correct under the Act as it was prior to the Amending Act, when ‘casual employee’ was not a defined expression in the Act. However, in the context of the current review, it is necessary for us to consider whether the definition of ‘casual employee’ which now appears in s.15A(1) encompasses daily hire employees employed in accordance with clause 11 of the Meat Award. That definition is centred on the absence of a ‘firm advance commitment’ with the prescribed features in the offer of employment which the employee accepts prior to commencing employment. As the High Court made clear in WorkPac Pty Ltd v Rossato, 60 a firm advance commitment requires the existence of a binding legal obligation. The question is, therefore, whether a contract for daily hire employment in terms reflective of or subject to clause 11 of the Meat Award provides for the ‘firm advance commitment’ to which s.15A(1) refers.
[106] In the contracts of employment considered in Rossato, it was considered decisive that the employment in question was, under the contracts, on an ‘assignment-by-assignment basis’, with the employee entitled to accept or reject an offer of an assignment and the employer under no obligation to offer any further assignments. The plurality (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ) concluded from this that ‘[o]n the plain and ordinary meaning of these provisions, the parties deliberately avoided a firm commitment to ongoing employment once a given assignment had been completed’. 61 Gageler J likewise concluded that the fact that the terms of the contracts did not oblige the employer to continue each contract if employment beyond the completion of the assignment to which each contract related ‘was enough in the circumstances to negative the existence of any firm advance commitment on the part of WorkPac to the indefinite continuation of Mr Rossato’s employment’.62 Accordingly, the Court concluded unanimously that the employment was casual in nature.
[107] Applying that reasoning here, we cannot positively conclude that employment in accordance with clause 11 of the Meat Award is not casual employment as defined in s.15A of the Act. Three features of clause 11 point to the absence of any ‘firm advance commitment to continuing and indefinite work’:
• clause 11.2 provides that a daily hire employee ‘will be employed by the day or shift’;
• clause 11.5 provides that the employment terminates at the end of each day or shift; and
• clause 11.9 requires the employee to ‘attend and offer for employment’ at the normal place and usual starting time unless notified by the employer that they are not required to attend.
[108] In short, there is no legal obligation on the employer to provide employment to a daily hire employee on any ordinary working day after the completion of the previous working day or shift. Because there is no such obligation, it follows that neither is there any commitment in respect of ‘an agreed pattern of work’.
[109] The AMIEU and the Ai Group referred to the continuing engagement of the daily hire employment for which clause 11.5 provides, notwithstanding the termination of employment at the end of each day or shift, and to the decision in The Queensland Meat Export Co v Hawkins 63 which characterised such a continuing engagement as giving rise to ‘an expectation of future employment and income’ on the part of the employee. However, Rossato has firmly established that such an ‘expectation’ is not enough:
“Something that is not binding cannot meaningfully be described in a court of law as a ‘commitment’ at all. Some amorphous, innominate hope or expectation falling short of a binding promise enforceable by the courts is not sufficient to deprive an agreement for casual employment of that character.” 64
[110] The AMIEU and the Ai Group sought to place reliance on the exhaustive list of matters prescribed by s.15A(2) which may be taken into account in determining whether there is an absence of the type of ‘firm advance commitment’ to which s.15A(1) refers to demonstrate that daily hire employees cannot be casual employees. However, on its proper construction, s.15A(2) does not displace the ordinary meaning of the words ‘no firm advance commitment to continuing and indefinite work according to an agreed pattern of work’ or give those words a deemed meaning. Reference to the s.15A(2) considerations cannot establish the existence of such a ‘firm advance commitment’ where none exists on the ordinary meaning of the language used in s.15A(1). The purpose of s.15A(2) is rather to limit the matters which are to be taken into account in determining whether there is an absence of the relevant ‘firm advance commitment’; the provision is not itself intended to be determinative of that question. So much is made clear by paragraphs [15]-[16] of the Explanatory Memorandum for the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020:
“15. The exhaustive list narrows the factors a Court can consider in assessing whether an offer of employment has the requisite absence of a firm advance commitment to continuing and indefinite work according to an agreed pattern of work, in order to provide the greatest degree of certainty. All of the factors may be relevant and none are determinative.
16. For example, if an offer of employment describes the employment as casual and includes payment of a casual loading, but provides for guaranteed hours on a continuing and indefinite basis according to an agreed pattern of work and the employee has no right to accept or reject work that is offered, the employment would not be casual.”
[111] In respect of daily hire employment under clause 11 of the Meat Award, the s.15A(2) matters point in both directions. As to paragraph (a), for the reasons earlier stated, it is clear that the employer can elect to offer work; however, the employee cannot elect to accept or reject work since under clause 11.9 the employee is required to attend the workplace and ‘offer for employment’ unless notified not to do so. As to paragraph (b), the employee will work as required according to the needs of the employer. In relation to paragraph (c), the employment is not described as casual employment. Finally, as to paragraph (d) although the employee is not entitled to a casual loading described as such, the employee is as earlier explained entitled to a 10% loading which, inferentially, compensates the employee for the ‘casualness’ of the employment. These cumulatively equivocal considerations do not operate to displace the proposition that the daily hire employment in accordance with clause 11 of the Meat Award simply does not involve the making of the type of ‘firm advance commitment’ referred to in s.15A(1).
[112] Accordingly, we do not consider that it is safe to assume that, under the Act as amended, daily hire employees are not casual employees and are entitled to the paid leave benefits of the NES. A number of consequences flow from this conclusion.
[113] First, it is necessary to distinguish the operation of the daily hire employment provisions in the Meat Award from the provisions applying to those who, in terms, are described as casual employees. The AMIEU and the Ai Group have agreed with the provisional view, stated in the 3 August Statement, that the current definition of a casual employee in clause 12.1 should be deleted, and replaced with a definition (in clause 2, Definitions) that refers to s.15A (albeit that they also seek that such a definition exclude daily hire employees). Because, as discussed, daily hire employees may fall within the s.15A definition, that makes it all the more necessary to make clear that the provisions of clause 12, Casual employees, are not intended to apply to daily hire employees. Accordingly, a new subclause will be added to clause 12, which will provide: ‘This clause does not apply to daily hire employees engaged pursuant to clause 11’.
[114] Second, to the extent that daily hire employees may fall within the definition of casual employment in s.15A, and thus not have any entitlement to NES paid leave benefits, it is necessary to establish an award entitlement to those benefits in order to maintain the integrity of the daily hire employment model. The NES benefits to which clause 11.2 refers are payment for public holidays, personal/carer’s leave and annual leave. In addition, it should be noted that although daily hire employees (regardless of whether they are casual) are expressly excluded from the NES provisions concerning notice of termination by virtue of s 123(3)(c), they are not excluded from the redundancy pay provisions of the NES (unless they are otherwise casual employees). Past decisions concerning daily hire employment indicate that severance payments upon a daily hire engagement becoming redundant are an understood feature of the employment model: see Hawkins v Queensland Meat Export Co 65 and AMIEU v Central Queensland Meat Export Co (Aust) Pty Ltd.66 Accordingly, it is also necessary for there to be an award entitlement to redundancy pay for daily hire employees who are casual employees, as defined. The following additional subclause shall therefore be added to clause 11:
“11.11 If a daily hire employee falls within the definition of ‘casual employee’ in clause 2, the employee shall have an entitlement under this award to the following NES benefits as if the employee was not a casual employee:
(a) Annual leave as provided for in Division 6 of Part 2-2 of the Act (despite clause 25.1 of this award);
(b) Paid personal/carer’s leave as provided for in Subdivision A of Division 7 of Part 2-2 of the Act;
(c) Public holidays as provided for in Division 10 of Part 2-2 of the Act; and
(d) Redundancy pay as provided for in Subdivision B of Division 11 of Part 2-2 of the Act.”
[115] Third, clause 8.4, insofar as it permits the employer to transfer full-time employees to daily hire employment, or part-time employees to part-time daily hire employment, may allow for transfer to daily hire employment that is casual employment as defined in s.15A. To this extent, clause 8.4 is a relevant term because it ‘deals with the circumstances in which employees are to be employed as casual employees’ (clause 48(1)(c)(ii) of Schedule 1 of the Act). The last sentence in clause 8.4 provides: ‘Nothing in clause 8.4 authorises an employer to require an employee to transfer to casual employment’. That clause may, on one view, be understood to be referring only to casual employment under clause 12. We consider that this sentence should be amended to read: ‘Nothing in clause 8.4 authorises an employer to require an employee to transfer to casual employment as defined in clause 2’. That will clarify that a permanent employee cannot be transferred to daily hire employment if such employment falls within the definition of casual employment in s.15A. With that clarification, clause 8.4 is not a relevant term and requires no further consideration.
[116] In respect of the three award variations above, we are satisfied in each case that the variation is necessary to achieve the modern awards objective. The matters in paragraphs (a)-(h) of s.134(1) have little relevance and neutral weight in relation to the variations, with the exception that the readiness of understanding the award (paragraph (g)) would be aided by the variations. The main purpose of the variations is to maintain the fairness and relevance of the safety net for which the Meat Award in conjunction with the NES provides for daily hire employees.
[117] In respect of the casual conversion provisions in the Meat Award, we accept the AMIEU’s submission that the facility for a casual employee engaged pursuant to clause 12 to convert to daily hire employment under clause 11 should be retained. In meat processing establishments, the only viable form of non-casual employment may be daily hire employment, so that there is no realistic capacity to convert to full-time or part-time employment. This means that conversion to daily hire employment is, from the perspective of employees, an important and valuable right.
[118] If daily hire employment constitutes casual employment within the meaning of s.15A, it is obvious that the NES casual conversion provisions do not contemplate conversion to daily hire employment (and would in fact permit conversion from daily hire employment). Further, the AMIEU and the Ai Group both submit that, in any event, the conversion to full-time or part-time employment for which the NES provide does not encompass conversion to daily hire employment, since this is a distinct form of employment.
[119] Accordingly, insofar as clauses 12.12 and 12.13 provide for conversion to full-time and part-time employment, they shall be removed and replaced with a reference to the NES casual conversion provisions. However, insofar as clause 12.12 provides for conversion to daily hire employment, it shall be retained. We are satisfied that this is necessary to achieve the modern awards objective, with the matters in paragraphs (a)-(h) of s.134(1) having neutral weight and with the emphasis being on the need to maintain the fairness and relevance of the safety net for which the Meat Award in conjunction with the NES provides. The variation which shall be made is that clauses 12.12 and 12.13 shall be deleted and replaced with the following:
“12.12 Offers and requests for casual conversion
Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES.
NOTE: Disputes about offers and requests for casual conversion under the NES are to be dealt with under clause 34—Dispute resolution.
12.13 Right to request conversion to daily hire employment in meat processing establishments
(a) A person engaged by a particular employer as a regular casual employee may request that their employment be converted to daily hire or part-time daily hire employment.
(b) A regular casual employee for the purpose of subclause 12.13 is a casual employee employed in accordance with clause 12 who has over the preceding 12 months worked a pattern of hours on an ongoing basis which, without significant adjustment, the employee could continue to perform as a full-time, part-time or daily hire employee (including part-time daily hire employee) under the provisions of this award.
(c) A regular casual employee may request to have their casual employment converted to the category of daily hire employment corresponding to the pattern of hours the employee has worked over the period referred to in clause 12.13(b).
(d) Any request under clause 12.13 must be in writing and provided to the employer.
(e) Where a regular casual employee seeks to convert to daily hire or part-time daily hire employment, the employer may agree to or refuse the request. The request may only be refused on reasonable grounds and after consultation with the employee.
(f) Reasonable grounds for refusal may include:
(i) that it would require a significant adjustment to the casual employee’s hours of work in order for the employee to be engaged as a daily hire or part-time daily hire employee in accordance with the provisions of this award – that is, the casual employee is not a true regular casual employee as defined in clause 12.13(b);
(ii) that it is known, or reasonably foreseeable, that the regular casual employee’s position will cease to exist within the next 12 months;
(iii) that it is known, or reasonably foreseeable, that the hours of work which the regular casual employee is required to perform will be significantly reduced in the next 12 months, other than where daily hire is in operation and the reduction in hours is due to seasonal factors; or
(iv) that it is known, or reasonably foreseeable, that there will be a significant change in the days and times at which the employee’s hours of work are required to be performed in the next 12 months which cannot be accommodated within the days and/or hours during which the employee is available to work.
(g) For any ground of refusal to be reasonable it must be based on facts that are known or reasonably foreseeable.
(h) Where the employer refuses a regular casual employee’s request to convert, the employer must provide the casual employee with the employer’s reasons for refusal in writing within 21 days of the request being made.
(i) If the employee does not accept the employer’s refusal, this will constitute a dispute that will be dealt with under the dispute resolution procedure in clause 34—Dispute resolution. Under that procedure, the employee or the employer may refer the matter to the Fair Work Commission if the dispute cannot be resolved at the workplace level.
(j) Where it is agreed that a regular casual employee will have their employment converted to daily hire or part-time daily hire employment as provided for in clause 12.13, the employer and employee must discuss and record in writing the form of employment to which the employee will convert—that is, daily hire or part-time daily hire employment.
(k) The conversion will take effect from the start of the next pay cycle following such agreement being reached unless otherwise agreed.
(l) Once a regular casual employee has converted to daily hire or part-time daily hire employment, the employee may only revert to casual employment with the written agreement of the employer.
(m) A casual employee must not be engaged and re-engaged (which includes a refusal to re-engage), or have their hours reduced or varied, in order to avoid any right or obligation under clause 12.13.
(n) Nothing in clause 12.13 obliges a regular casual employee to convert to daily hire or part-time daily hire employment, nor permits an employer to require a regular casual employee to so convert.
(o) Nothing in clause 12.13 requires an employer to increase the hours of a regular casual employee seeking conversion to daily hire or part-time daily hire employment.
(p) An employer must provide a casual employee employed in accordance with clause 12, whether a regular casual employee or not, with a copy of the provisions of clause 12.13 within the first 12 months of the employee’s first engagement to perform work.
(q) A regular casual employee’s right to request to convert is not affected if the employer fails to comply with the notice requirements in clause 12.13(p).”
[120] Finally, in respect of clause 12.4, we accept the position agreed by the AMIEU and the Ai Group that it should be deleted on the basis that it may be understood as defining casual employment in a manner inconsistent with s.15A.
Additional issue - clause 12.8
[121] There was an additional issue raised with the parties at the directions hearing on 16 August 2021 concerning clause 12.8 of the Meat Award which was not adverted to in the 3 August statement. It was indicated to the parties that the provisional view was that clause 12.8, which provides that, wherever possible, the employer will notify casual employees of their starting and finishing times for the period of their engagement at the commencement of their engagement, was inconsistent with the Act. This view was formed on the basis that the requirement in clause 12.8 might arguably be understood as involving the provision of a ‘firm advance commitment’ of the type referred to in s.15A and thus would be inconsistent with the definition of casual employment in s.15A. In response, both the AMIEU and the Ai Group agreed with the provisional view and supported the deletion of clause 12.8.
[122] We confirm the provisional view, and the Meat Award will be varied to remove clause 12.8.
[123] In the 11 August statement (at [62]), we expressed the provisional view that clause 20.3 of the Alpine Award, which concerns multi-hiring arrangements, was inconsistent with the Act because paragraph (c) requires non-primary employment to be casual, regardless of whether it meets the definition of casual employment in s.15A of the Act. Our provisional view was that clause 20.3(c) should be varied to provide as follows:
“(c) The employer may then offer the employee, and the employee may undertake, a non-primary role (or roles) in any level or classification within Schedule A—Classification Definitions that they are qualified for, provided that any hours worked by an employee in a non-primary role do not count toward ordinary hours or overtime in the employee’s primary role.”
[124] The SDA opposed our provisional view, and contended that clause 20.3(c) was not inconsistent with the Act and should not be varied. 67 It submitted that the proposed variation would detrimentally affect employees and was not appropriate because:
• it creates the anomalous situation that the hours worked in the non-primary employment are neither casual hours nor do they count towards overtime or ordinary hours;
• it deprives employees of the benefits conferred by the clause in its current form, namely the payment of the casual loading on hours worked (under clause 11.2(a)(ii)), the casual rostering arrangements including the minimum engagement period (under clause 11.5) and the casual employee’s ability to refuse hours; and
• current industrial practice treats such hours as casual employment, and the Commission’s proposed variation to clause 20.3(c) would allow non-primary employment to be treated as non-casual employment with accruals for annual leave and personal leave in accordance with ss.87 and 96 of the Act, representing a significant change to current industrial practice and potentially resulting in a conflict with s.62 of the Act.
[125] The SDA submitted that the concerns identified in the 11 August statement could more easily be addressed by adding a note to clause 20.3 as follows:
“NOTE: A casual role must meet the definition of a casual employee as under the Act. Non-casual roles may not be offered under clause 20.3”
[126] We are not persuaded to depart from the provisional view that clause 20.3(c) is inconsistent with the Act. Accordingly, we are required by clause 48(3) of Schedule 1 to vary the provision to remove the inconsistency. However, we accept that the variation to the provision proposed in the 11 August statement may lead to the unintended detrimental consequences identified in the SDA’s submissions. Accordingly, we propose to vary clause 20.3(c) in a different way to avoid the consequences, as follows:
“(c) The employer may then offer the employee, and the employee may undertake, a non-primary role (or roles) as a casual employee in any level or classification within Schedule A—Classification Definitions that they are qualified for, provided that:
(i) any non-primary role is to be paid for in accordance with clause 11; and
(ii) any hours worked by an employee in a non-primary role do not count toward ordinary hours or overtime in the employee’s primary role.”
[127] There are two matters arising in respect of this award. First, in the 11 August statement we expressed the provisional view that clause 11.1 is not consistent with the definition in s.15A of the Act but incorporates restrictions on the use of casual employment which may separately be preserved. We concluded, on a provisional basis, that:
“…a new definition of ‘casual employee’ that refers to s.15A of the Act should be added to clause 2, Definitions of the award, and clause 11.1 should be modified to read:
‘A casual employee may only be engaged in relieving work or work of a casual, irregular or intermittent nature.’”
[128] The Ai Group opposes our provisional view that clause 11.1 should be retained in the modified form above. 68 It submitted that:
• clause 11.1 does not operate to impose any limitations on casual employment because it enables casuals to be engaged in all work of a ‘casual…nature’;
• the proposed modified clause would lead to interaction difficulties with the Act, in that it would confuse both employers and employees because the concepts of irregularity and intermittency do not align with the meaning of a ‘firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person’ in s.15A;
• the proposed clause should not be included in the Textile Award for a similar reason as outlined by the Commission in deciding to remove the requirements for employers to inform casual employees of the ‘…likely number of hours they will be required to perform’ in the July 2021 decision;
• Ai Group also submitted that the proposed clause could in effect exclude the operation of the NES because the NES casual conversion provisions would be left with no work to do, and consequently would contravene s.55 of the Act and have no effect; and
• the proposed modified provision is inconsistent with s.138 of the Act as it is not necessary, and is inconsistent with the new statutory definition and the modern awards objective.
[129] The CFMMEU supported the provisional view. 69 It submitted that the word ‘casual’ should be properly read in combination with the rest of the proposed clause 11.1, specifically the words which appear both before and after the word ‘casual’, and that on an ordinary construction the word ‘casual’ is placed in context of the associated restrictions on casual employment contained in the current clause 11.1. In the alternative, the CFMMEU submitted that the issue may be remedied by deleting the word ‘casual’ so that the amended proposed clause would read:
“11.1 A casual employee may only be engaged in relieving work or work of an irregular or intermittent nature.”
[130] Except for one matter, we do not accept the Ai Group’s submissions. We have earlier described the limited nature of the task to be undertaken in this review, and it does not extend to removing existing award provisions where they can be preserved in a way which does not give rise to inconsistency or interaction difficulty with the Act. Our provisional view would involve adding a definition of ‘casual employee’ to clause 2 of the Textile Award which refers to the definition in s.15A of the Act. This definition will operate with respect to the use of the expression ‘casual employee’ in the proposed modified clause 11.1. For this reason, there can be no possibility of inconsistency or interaction difficulty with the Act. The Act, as amended, does not prohibit or inhibit modern awards from placing restrictions on the utilisation of casual employees (as defined in s.15A). The modified clause 11.1 would preserve the existing restrictions. The practical effect of the clause would be to prohibit ‘regular’ casual employment. As the High Court decision in Rossato has made clear, employment may be casual (because of the absence of a binding advance commitment as to ongoing and indefinite work) notwithstanding that, in practice, it involves the performance of work on a regular and predictable basis. Thus, one subcategory of casual employment, as defined in s.15A, is not permitted. It is permissible to include a provision of this nature in a modern award, having regard to s.136(1)(a) and s.139(1)(b).
[131] We reject the proposition that the clause would exclude the operation of the NES casual conversion provisions, contrary to s.55(1). The fact that such a clause would be likely to restrict the number of casuals capable of satisfying the statutory criteria for casual conversion offers or requests does not amount to an exclusion within the meaning of s.55.
[132] We accept the Ai Group’s point that the retention of the word ‘casual’ in clause 11.1 to describe the work which a casual employee may do may involve an element of circularity. The word is effectively surplusage because its meaning is equally conveyed by the words ‘irregular or intermittent’. The award will be varied in the terms of the alternative draft proposed by the CFMMEU. We consider that this variation is necessary under clause 48(3) of Schedule 1 to remove the current inconsistency between clause 11.1 and the Act which is identified in the 11 August statement. We also consider that the variation is necessary to meet the modern awards objective because it retains the restrictions on the use of casual employment which have hitherto formed part of the safety net for employees covered by the Textile Award and thus maintains the fairness and relevance of that safety net. In reaching that conclusion we have taken into account the matters specified in s.134(1) of the Act, which we consider have neutral weight in relation to the issue.
[133] The second issue identified in the 11 August statement concerns the opening sentence of the casual conversion provision in clause 11.12 of the Textile Award. After having expressed the provisional view that the substantive provisions of the casual conversion clause should be deleted (which provisional view we have confirmed above) we said:
“[51] Our provisional view does not extend to the opening paragraph of clause 11.12. It is clearly a relevant term but, if it is detached from the casual conversion provisions which follow so that it reads ‘The employer will take all reasonable steps to provide its employees with secure employment by maximising the number of permanent positions in the employer’s workforce’, then on one view it neither gives rise to inconsistency with the Act nor causes any interaction difficulty. We do not propose to express any provisional view about this, and we will invite further submissions about the matter.”
[134] The Ai Group opposed the retention of the opening sentence of clause 11.12. It submitted that the sentence was not by itself a matter which is permitted to be included in a modern award and that, while it may arguably be incidental (under s.142 of the Act) to a term dealing with the allowable award matter of casual employment (s.139(1)(b)) when simply one sentence in a clause about casual conversion rights, it takes on a different character once separated from the subject matter of casual conversion. The Ai Group submitted that it becomes, in effect, a job security clause which offends s.136 of the Act and would therefore have no effect under s.137 of the Act. It also submitted that the clause is not necessary to meet the modern awards objective and is therefore inconsistent with s.138 of the Act.
[135] The CFMMEU submitted that:
“…the term is not merely an expression of an objective (i.e. the right for a casual employee covered by the TCF Award to elect to seek casual conversion under the procedure outlined in clause 12.11 (a) – (i). In our view, the term has work to do, both generally in maximising permanent employment within the TCF industry, but also as part of the facilitation of conversion of casual employees. This is relevant given the particular nature and characteristics of the TCF industry and the history of award regulation in the TCF sector, including in the making of the modern TCF Award 2010 arising from the Part 10 Award Modernisation process.”
[136] The CFMMEU submitted that the term is not inconsistent with the Act, nor does it cause any uncertainty or difficulty relating to the interaction between the Textile Award and the Act, and that the retention of the term is necessary in order to achieve the modern awards objective. It noted as relevant to the issue of necessity that the term was included in the casual conversion clause in the making of the Textile Award in the award modernisation process.
[137] Having determined that the substantive casual provisions of the Textile Award should be deleted, we consider that the real question is whether the opening sentence of clause 11.12 was intended to impose any substantive obligation on employers independent from compliance with the casual conversion provisions which followed. We consider this to be unlikely. As the CFMMEU accepted, the sentence had no life as an independent award provision prior to being included in the casual conversion clause when the Textile Award was made during the award modernisation process. It is difficult to identify what an employer might be required to do to comply with the sentence, if it imposes an obligation, apart from complying with the casual conversion provisions in clause 11.12. This is especially the case because clause 11.1, discussed above, already limits the engagement of casual employees to the performance of irregular and intermittent work, and thus requires regular ongoing work to be performed by permanent employees. In our view, the opening sentence to clause 11.12 is best read as stating the purpose or object of the casual conversion provisions which follow and was not intended to impose any separate obligation on employers. That being the case, it must fall with the rest of clause 11.12, since it otherwise serves no purpose and is not necessary to achieve the modern awards objective. Given that conclusion, it is not necessary to consider Ai Group’s submission that the sentence is not, by itself, permitted to be included in an award by virtue of s.136(1).
[138] In the 11 August statement (at [68]) we expressed the provisional view that, subject to the removal of clause 11.1 and the addition to clause 2 of a definition of ‘casual employee’ which refers to the statutory definition in s.15A, the restrictions on the use of casual employees currently contained in clause 11.2 of the Cleaning Services Award may be retained on the basis that they do not give rise to any inconsistency or interaction difficulty with the Act. We also noted that the retention of clause 11.2 would mean that it is unlikely that the casual conversion requirements of the NES will have any work to do in relation to employees covered by the Cleaning Services Award.
[139] The Ai Group opposed the provisional view and contended that clause 11.2 should be deleted. 70 It submitted, first, that the retention of clause 11.2 would lead to interaction difficulties with the Act because it would confuse employers and employees as a result of the lack of alignment between the requirements in clause 11.2(a), (b) and (c) and the meaning of a ‘firm advance commitment to continuing and indefinite work according to an agreed pattern of work for that person’ in s.15A(1) of the Act. It further submitted that the requirements in clause 11.2 are inconsistent with the considerations in s.15A(2)(a) and (b) of the Act and the Casual Employment Information Statement, and that the clause should be removed for the same reason as for the Full Bench’s determination in the July 2021 decision to remove the requirement in various awards for employers to inform casual employees on their engagement of the likely number of hours they will be required to perform. The Ai Group also submitted the retention of clause 11.2 would exclude the operation of the casual conversion rights in the Act because it would leave them with no work to do, and thus contravene s.55(1) of the Act in this regard.
[140] The UWU agreed with the Commission’s provisional view regarding clause 11.2 of the Cleaning Services Award. 71 It rejected the Ai Group’s submission that there was any inconsistency with s.15A, and submitted that restricting casual employment to the performance of intermittent and irregular work, uncertain hours, or the replacement of a full-time or part-time employee enforces that a casual in the industry is not employed with a firm advance commitment. It also rejected that the retention of clause 11.2 would lead to interaction difficulties with the Act.
[141] We confirm our provisional view. As stated above in respect of clause 11.2 of the Textile Award:
• if ‘casual employee’ is defined in the award in a way that is consistent with s.15A, no inconsistency or interaction difficulty with the Act results because clause 11.2 operates upon casual employees as defined in s.15A;
• the Act, as amended, does not prohibit but rather permits award provisions which restrict the use of casual employees (as defined in s.15A); and
• the provision does not, within the meaning of s.55(1), exclude the NES casual conversion provisions merely because it may limit those casual employees who are capable of meeting the statutory criteria for an offer or request for conversion.
[142] It may be added that the Ai Group has not identified any reason why clause 11.2 should not be regarded presumptively as consistent with and necessary for achieving the modern awards objective. Accordingly, no variation in respect of clause 11.2 is required under clause 48(3) of Schedule 1.
[143] In the 11 August statement (at [37]-[40]), we gave consideration to clause 10.7 of the Horse and Greyhound Award, and made the following observations:
“[39] Clause 10.7 is clearly a relevant term. On one view, it may lead to inconsistency and/or interaction difficulty with the Act, in that its sphere of operation may overlap with the NES residual right to request casual conversion (because an employee may not achieve a 12-week regular pattern of hours until after 12 months’ total employment). Alternatively, it might be said that because clause 10.7 provides for the employee to have a genuine right to elect for permanent employment, without the capacity for the employer to refuse, it is entirely different in nature than the right to request casual conversion provided for in the NES. Additionally, it might be a simple matter to modify clause 10.7 to ensure it never overlaps with the NES right to request casual conversion by providing that it only operates within the first 12 months of casual employment.”
[144] We did not express any provisional review in relation to clause 10.7, but invited submissions in light of the observations which we made.
[145] In response, the AWU submitted that the Horse and Greyhound Award provides a casual conversion right which is not subject to the agreement of the employer and is consequently far more beneficial, and of a different nature, than the casual conversion entitlements in the NES. 72 It submitted that clause 10.7 should be retained in its current form as a term that is supplementary to the NES provisions. In the alternative, the AWU accepted that another available option it to confine the operation of clause 10.7 to the first 12 months of employment.
[146] ABI submitted generally that necessary variations to awards should be made to ensure that competing casual conversion regimes in the NES and under any award do not have concurrent operation in order to avoid uncertainty and confusion concerning the interaction of the NES and the award. 73 In support of this proposition, ABI referred to the finding of the Full Bench at [238] of the July 2021 decision regarding the impact on employers of competing conversion requirements in the context of the Manufacturing Award. ABI indicated, however, that it did not contest the AWU’s view that clause 10.7 of the Horse and Greyhound Award is more beneficial to employees than the NES casual conversion entitlement and a different entitlement. Nor did it contest the Full Bench’s conclusion (at [36]) in the July 2021 decision that relevant award terms are not ‘inconsistent with’ the Act as amended merely because they differ from the newly enacted provisions.
[147] Having regard to these submissions, we do not consider that any variation to clause 10.7 of the Horse and Greyhound Award is required under clause 48(3) of Schedule 1 to the Act. Even if clause 10.7 may, in some (probably rare) circumstances, have concurrent operation with the NES casual conversion provisions, we do not think that this would cause any inconsistency or gives rise to any interaction difficulty. Clause 10.7 establishes an unconditional entitlement for a casual employee to elect to convert to permanent employment if the employee has worked a regular pattern of hours for 12 consecutive weeks and will do so in the next consecutive week. This entitlement is of an entirely different character to the casual conversion entitlements conferred in the NES and, accordingly, there is no reasons why clause 10.7 cannot continue in its current form pursuant to s.55(4)(b) of the Act as a term which supplements the NES. Accordingly, there will be no variation to clause 10.7 of the Horse and Greyhound Award.
[148] In the 18 August statement in relation to the Group 3 awards, we expressed the provisional view that the Higher Education – Academic Staff Award should be varied pursuant to s.157(1) of the Act by adding a provision to refer to the NES casual conversion provisions as follows:
“[41] The Higher Education—Academic Award does not contain a casual conversion clause. The NES casual conversion provisions now apply to employers and employees covered by this award. There is no relevant provision in connection with casual conversion requiring consideration under clause 48 of Schedule 1. However, our provisional view is that the award should be varied pursuant to s.157(1) of the Act by adding a provision to refer to the NES casual conversion provisions. This will assist users of the award and achieve consistency across modern awards.”
[149] In response to this provisional view, the Group of Eight Universities (Go8) submitted that the variation proposed may not meet the requirement to achieve the modern awards objective in s.134(1) of the Act. 74 The Australian Higher Education Industrial Association did not object to this provisional view.75
[150] The National Tertiary Education Industry Union (NTEU) submitted in response to the Go8 submission it supported the provisional view. 76 It submitted, among other things, that the proposed variation was consistent with the legislative scheme, and was desirable in circumstances where casual conversion provisions have long been included in the award for general staff but not in the award for academic staff. The absence of a cross-reference to the NES casual conversion provisions in the Higher Education - Academic Staff Award would, it submitted, be likely to lead a non-learned reader to believe that no such provision applied to employees covered by the award.
[151] We confirm the provisional view. We consider that the variation proposed is necessary to achieve the modern awards objective, in that the maintenance of the fairness and relevance of the safety net requires users of the Higher Education - Academic Staff Award to be alerted or reminded of the existence of the new NES casual conversion provisions. This is particularly the case, as the NTEU submitted, in circumstances where employees covered by the award have not previously had any entitlement to be offered or to request casual conversion. In reaching this conclusion, we have placed particular weight on the need, referred to in s.134(1)(g), to ensure that the modern award system is easy to understand. We have assigned neutral weight to the other considerations required to be taken into account under s.134.
[152] Two issues have arisen in respect of the Labour Market Award. The first concerns the employment category of sessional employment for which the award provides. In the 18 August statement, we made the following observations concerning sessional employment:
“[47] It is unclear whether sessional employment under the Labour Market Award is intended to be a species of casual employment, or alternatively a form of fixed-term full-time or part-time employment. The award provisions do not permit any ready conclusion to be reached as to whether sessional employment would, or would not, meet the definition of casual employment in s.15A. The requirement for sessional employment to be paid casual rates of pay, inclusive of the casual loading, may suggest that it is intended that sessional employees not receive NES entitlements which do not apply to casual employees. If so, that will give rise to inconsistency with the Act if sessional employees are not casual employees as defined in the Act.”
[153] We did not express any provisional view, and invited submissions from interested parties about this issue. However, no submissions were filed by any party, nor did anybody attend the hearing listed in relation to this award on 7 September 2021.
[154] Our conclusion, on balance, is that sessional employment is a species of casual employment, as defined in s.15A of the Act. It appears that sessional employees are engaged on an occasional, as-needed basis to conduct training sessions, and consequently would not be provided with any ‘firm advance commitment to continuing and indefinite work according to an agreed pattern of work’. In relation to the s.15A(2) matters:
• there is nothing in the award to suggest other than that an employer can elect to offer and an employee can elect to accept or reject sessional work;
• sessional employees work as required according to the needs of the employer;
• the employment is not, in terms, described as casual employment, but the award does expressly state that sessional employees are to be paid casual rates of pay; and
• because sessional employees are paid the casual hourly rates of pay, they receive the casual loading.
[155] We do not consider that the provisions of the Labour Market Award applicable to casual employees are inconsistent with the Act or give rise to any interaction difficulty or uncertainty. Accordingly, no variation to the Labour Market Award with respect to sessional employment is required under clause 48(3) of Schedule 1 of the Act.
[156] The second issue concerns clause 11.1 of the Labour Market Award, which provides:
“11.1 A casual employee means an employee who is engaged intermittently by the hour for work of an unexpected or casual nature and does not include an employee who could properly be engaged as a full-time, part-time or sessional employee.”
[157] In the 18 August statement, we expressed the provisional view that clause 11.1 should be deleted, and that a new definition of ‘casual employee’ should be added to clause 2—Definitions as follows: ‘casual employee has the meaning given by section 15A of the Act’. No submissions were received in response to this provisional view.
[158] We have reconsidered our provisional view. We consider that clause 11.1 is not merely definitional in nature, but also incorporates restrictions upon the use of casual employees. Consistent with the approach taken in respect of clause 11.1 of the Textile Award, we consider that these restrictions should be maintained alongside the new definition to be added to clause 2. Accordingly, we consider that clause 11.1 should not be deleted entirely, but varied to provide as follows:
“11.1 A casual employee may only be engaged for work of an intermittent or unexpected nature.”
[159] Draft determinations varying the awards dealt with in this decision will be issued in conjunction with this decision. Interested parties are to provide any comment on the draft determinations by 5PM (AEST) MONDAY, 20 SEPTEMBER 2021.
VICE PRESIDENT
Appearances:
J Arndt and J Lombardelli on behalf of the ABI and NSWBC.
S Kemppi on behalf of the ACTU.
S Smith on behalf of the Ai Group.
A Oehme on behalf of the AMIEU.
K Tobin on behalf of the AMWU.
S Crawford and Z Duncalfe on behalf of the AWU.
J Murdoch QC on behalf of Birch Carroll & Coyle Limited and other cinema employers.
Y Abousleiman for the CEPU.
P Coffey on behalf of the CEPU – Plumbing Division.
P Boncardo of counsel on behalf of the CFMMEU (Construction & General Division).
V Wiles on behalf of the CFMMEU (Manufacturing Division).
A Schladetsch on behalf of the HIA.
I Latham of counsel on behalf of the MEEA.
R Sostarko on behalf of MBA.
A Pardo on behalf of the SDA.
H Miflin for the UWU.
D Hodges on behalf of the Victorian Automotive Chamber of Commerce and Motor Trade Associations.
Hearing details:
2021.
Sydney and Melbourne (via video-link):
6 and 7 September.
Printed by authority of the Commonwealth Government Printer
<PR733569>
9 Ibid.
10 CFMMEU C&G, Submission,10 August 2021; CFMMEU C&G, Submission, 24 August 2021.
11 [2017] FWCFB 3541, 269 IR 125.
12 [2021] HCA 23.
13 Statement of Mark Cross dated 24 August 2021 (Exhibit 10).
14 Statement of Nigel Davies dated 24 August 2021 (Exhibit 11).
15 CFMMEU (Manufacturing), Submission, 26 August 2021.
16 Statement of Paris Nicholls dated 26 August 2021 (Exhibit 2).
17 Statement of Elizabeth Macpherson dated 26 August 2021 (Exhibit 1).
18 CEPU, Submission, 10 August 2021.
19 AWU, Submission, 10 August 2021.
20 AWU, Submission, 18 August 2021; AWU, Submission, 25 August 2021.
21 UWU, Submission, 23 August 2021.
22 Statement of Pareen Minhas dated 19 August 2021 (Exhibit 13).
23 Statement of Margaret Joyce Te Awa dated 20 August 2021 (Exhibit 12).
24 AMWU, Submission, 11 August 2021.
25 AMWU, Submission, 18 August 2021.
26 Statement of Alby Dyminski dated 24 August 2021 (Exhibit 3).
27 Statement of Darren Bathman dated 20 August 2021 (Exhibit 4).
28 Statement of Helen Fawke dated 23 August 2021 (Exhibit 5).
29 Statement of Jason Hefford (undated) (Exhibit 6).
30 Statement of Jessica Rea dated 11 August 2021 (Exhibit 7).
31 Statement of Michelle Odonnell dated 9 August 2021 (Exhibit 8).
32 Statement of Nicole Coppock dated 26 August 2021 (Exhibit 9).
33 SDA, Submission, 18 August 2021.
34 ACTU, Submission, 10 August 2021; ACTU, Submission, 18 August 2021.
35 Ai Group, Submission, 2 September 2021.
36 [2014] FWCFB 1788, 241 IR 189 at [25] – [27].
38 ABI, Submission, 2 September 2021.
39 HIA, Submission, 2 September 2021.
40 MBA, Submission, 2 September 2021.
41 [2013] FWCFB 2434, 230 IR 30.
42 Victorian Automotive Chambers of Commerce, the Motor Traders’ Association of NSW, the Motor Trade Association of South Australia and Northern Territory and the Motor Trade Association of Western Australia.
43 Motor Trades Organisations, Submission, 2 September 2021.
44 Country Press Australia, Submission, 1 September 2021.
45 See clause 11.5(k).
46 [2021] FWCFB 4144 at [236].
47 Cinema Employers, Submission, 9 August 2021.
48 MEAA, Submission, 23 August 2021.
49 Cinema Employers, Submission, 30 August 2021.
50 AMIEU, Submission, 13 August 2021; AMIEU, Submission, 23 August 2021.
51 AI Group, Submission, 13 August 2021; AI Group, Submission, 1 September 2021.
52 [2001] FCA 1589, 2001 FCR 78, 111 IR 198.
53 Print R9075, (1999) 91 IR 414.
54 [2003] FCA 910, 126 IR 165.
55 Productivity Commission, ‘Work Arrangements in the Australian Meat Industry’ (1998) at p 61.
56 [1996] IRCA 618.
57 [1999] FCA 775, 90 IR 364.
58 [1989] AIRC 441.
59 [2018] FCAFC 131, 264 FCR 536, 280 IR 191.
60 [2021] HCA 23.
61 Ibid at [88].
62 Ibid at [118].
63 [1996] IRCA 618.
64 [2021] HCA 23 at [61].
65 [1996] IRCA 618.
66 [1999] FCA 775, 90 IR 364.
67 SDA, Submission, 27 August 2021.
68 Ai Group, Submission, 17 August 2021; Ai Group, Submission, 30 August 2021.
69 CFMMEU (Manufacturing), Submission, 30 August 2021.
70 Ai Group, Submission, 17 August 2021.
71 UWU, Submission, 25 August 2021.
72 AWU, Submission, 18 August 2021.
73 ABI, Submission, 27 August 2021.
74 Go8, Submission, 25 August 2021.
75 AHEIA, Submission, 25 August 2021.
76 NTEU, Submission, 2 September 2021.