DECISION

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

4 yearly review of modern awards - Part-time employment and Casual employment
(AM2014/196 and AM2014/197)

4 yearly review of modern awards – common issues – part time employment and casual employment.

Introduction

[1] In conjunction with a decision issued by us on 9 August 2018 1 (August decision), a number of draft determinations were published that would, among other things, give effect to our earlier decision issued on 5 July 20172 (principal decision) to add standardised casual conversion provisions to a number of modern awards, and also to a provide for a 2-hour minimum engagement period for casual employees in modern awards which do not currently provide for any such minimum engagement period. Interested parties were afforded a period of 7 days by the August decision to comment on the form of the variations contained in the draft determinations.

[2] A number of submissions were received in response, which we will deal with in turn.

Australian Industry Group

[3] The Australian Industry Group (Ai Group) raised five issues in its submissions filed on 6 September 2018. Firstly, it submitted that the definition of “regular casual employee” in the model casual conversion clause would result in virtually all casual employees being eligible for conversion in modern awards which have flexible part-time employment provisions (such as the Banking, Finance and Insurance Industry Award 2010). We reject this submission, for two reasons. First, this submission is in substance one concerned with the merits of the model casual conversion provision rather than its form in the relevant draft determinations. An opportunity was afforded to interested parties to comment upon the merits of the model casual conversion clause after the principal decision was issued last year, and no such submission was made by the Ai Group at that time. Second, it was intended by us that there would be greater eligibility for casual conversion under awards which had more flexible part-time employment provisions. In the principal decision we said in relation to the qualifying criterion proposed for the model casual conversion clause:

“[377] We therefore consider that the qualifying criterion should be that the casual employee (over a calendar period of 12 months) has worked a pattern of hours on an ongoing basis which, without significant adjustment, could continue to be performed in accordance with the full-time or part-time employment provisions of the relevant award… It will obviously follow from the adoption of that criterion that the more flexible the hours of work provisions for full-time and part-time employees are, the greater the opportunity there will be for casual conversion to occur.”

[4] Secondly, the Ai Group submitted that, in respect of the 14 modern awards 3 identified in paragraph [26] of the August decision which did not require written agreement upon engagement concerning the regular pattern of work of part-time employees or for part-time employees to be advised of their regular pattern of work, the proposed modification to the model clause set out in paragraph [27] which was contained in the draft determinations for those 14 awards would be inappropriate. The modified provision was as follows:

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

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

(ii) if it is agreed that the employee will become a part-time employee, the days the employee will be required to attend for work and the starting and finishing times for each such day.

[5] The Ai Group submitted that such a provision would be inappropriate because it would require, for casual employees converting to part-time employment, the fixation of hours in a way that would not be applicable under the 14 awards for employees engaged at the outset on a part-time basis. We consider that there is substance to this submission. We do not intend that the casual conversion clause in any of the 14 awards should impose requirements upon part-time employment which are in excess of those currently existing beyond what is necessary to facilitate casual conversion in a transparent fashion. Accordingly, we will further modify the provision so that the requirement is no more than to record the employee’s hours of employment fixed in accordance with applicable provisions of the award. In the case of the Contract Call Centres Award 2010, as an example, the modified provision will be as follows (with the modified part emphasised):

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

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

(ii) if it is agreed that the employee will become a part-time employee, the employee’s hours of work fixed in accordance with clause 12.

[6] This will apply to all 14 of the awards except for the Broadcasting, Recorded Entertainment and Cinemas Award 2010 (BREC Award), which is discussed separately later.

[7] Thirdly, the Ai Group advised that it was currently pursuing a claim for a variation to the part-time employment provisions in the Fast Food Industry Award 2010 which, if successful, might lead it to seek consequential amendments to the casual conversion provision to be placed into that award. That submission is noted.

[8] Fourthly, it was submitted that the draft determination for the Road Transport (Long Distance Operations) Award 2010 required correction, in that the cross-reference in paragraph (j)(ii) to “clause 10.3” should be amended to read “clause 10.3(b)”. We agree, and the correction will be made in the final determination.

[9] Fifthly, it was submitted that the draft determination for the Storage Services and Wholesale Award 2010 also required correction, in that the cross-reference in paragraph (j)(ii) to “clauses 11.3(c) and (d)” should be amended to read “clause 11.3(c)”. We agree, and the correction will be made.

[10] Finally, we note that the Ai Group requested that the matter be listed for a conference in order to deal with other outstanding issues that it might identify with respect to the draft determinations, and note that in order to allow that to occur it might seek that the 1 October 2018 operative date determined by us in the August decision be postponed. We are not satisfied that there is any necessity for such a conference. Interested parties have been provided with ample opportunity to raise any implementation issues since the principal decision was published in July 2017. The operative date of 1 October 2018 will be maintained.

Cinema industry employers

[11] Birch Carroll and Coyle Limited, The Hoyts Corporation Pty Limited, The Greater Union Organisation Pty Ltd, Village Cinemas Limited and Independent Cinemas Association of Australia (cinema industry employers) submitted, in respect of the draft determination to introduce a casual conversion clause into the BRECS Award, that it would result in the establishment of “two classes of part-time employees working alongside one another”. This would be the case, they submitted, because paragraph (j)(ii) of the proposed casual conversion clause in the draft determination would effectively impose requirements on the working hours of casuals converting to part-time employment which did not apply to persons engaged on a part-time basis at the commencement of their employment. The cinema industry employers also submitted that paragraph (j)(ii) would restrict the operation of the flexible part-time employment provisions in the BRECS Award. They proposed that paragraph (j)(ii) be amended to read: “(ii) if it is agreed that the employee will become a part-time employee, the matters referred to in clauses 54.3(a), 55.1(c) and 55.2(d)”.

[12] The cinema industry employers’ submission raises the same point as the Ai Group’s second submission to which we have earlier referred. It likewise has substance. We do not intend to place any new requirement concerning the working hours for part-time employees in the BRECS Award by way of the casual conversion clause. However the difficulty with the proposed modification is that it is framed only by reference to part-time employees in cinemas to whom clause 53 of the award applies, and does not accommodate other part-time employees to whom clause 10.4 is applicable. We consider the cinema industry employers’ concern will be addressed if paragraph (j)(ii) of the casual conversion is modified to read: “(ii) if it is agreed that the employee will become a part-time employee, the matters referred to in clauses 54.3(a), 55.1(c) and 55.2(d) in respect of cinema employees and the matters referred to in clause 10.4(c) in respect of all other employees”.

Shop, Distributive and Allied Employees’ Association

[13] The Shop, Distributive and Allied Employees’ Association (SDAEA) made submissions concerning the draft determination for the Fast Food Industry Award and the Storage Services and Wholesale Award which raised, in substance, the same issues as those raised by the Ai Group with respect to those awards. We have already dealt with those issues.

[14] The SDAEA also submitted that we should defer making any determination to vary the Mannequins and Models Award 2010 to provide for a 2-hour minimum engagement because the structure of the draft determination did not accord with the current provisions of the award. In this respect the SDAEA submitted:

“4. Currently casuals can have shorter engagements but are guaranteed a rate for the engagement. This was explained in the SDA submission to the Award Review on the 1st July 2018 regarding the exposure draft in matter AM 2014/277.

5. The SDA in that submission made the following comment:

Clause 11

Casual employment and rates are governed by the draft clause 16.2. The various ‘engagements’ ie parades, paradettes, rehearsals etc have maximum hours built in. The engagement for these can be any minimum ie 30mins but cannot exceed the maximum hours. The engagement has a set rate regardless if the period is 10mins up to the maximum set for the type of engagement ie ‘single parade’ has a max of 2 hours.

(Clause 11 refers to the current Clause 10 provisions of the Award.)

6. The draft determination would mean models would need to attend for a period longer than is currently required, without any increase in pay. This is not the intent of inserting minimum engagement for casuals. This would be an unintended consequence due to the structure of payments to casual employees under the award.

7. The SDA believes that it is an issue that is now best suited to be referred to the Award Review stage of the Mannequins and Models Award given the unique structure of the award. This will enable the parties and the Commission to ensure that the intent of the minimum engagement for casuals is provided for if and where necessary, but does not cause unintended consequences.”

[15] We accept the SDAEA’s submission that the draft determination is not adapted for the peculiar casual employment provisions of this award, and that the issue of a casual minimum engagement period requires further award-specific consideration. Accordingly no final determination will be made and the issue will be deferred for consideration as part of the specific review of the Mannequins and Models Award.

Western Australian Local Government Association

[16] The Western Australian Local Government Association (WALGA) lodged submissions in relation to the draft determination to introduce a 2-hour minimum engagement period for casual employees in the Local Government Industry Award 2010. It submitted that casual employees in recreation centres and swimming pools and casual home care employees and cleaners should only have a one-hour minimum engagement period, and the draft determination should be varied accordingly. Its submissions contained a number of factual assertions in support of this proposed outcome, and concluded by saying:

“If the Commission is minded to consider the inclusion of a one hour minimum engagement period for casual employees in recreation and leisure services, community services and cleaning services as outlined in this submission, WALGA requests a further period to:

(a) submit statement evidence in support of this submission; and

(b) provide draft wording to amend the clause set out in the Draft Determination regarding minimum engagement for casual employees.”

[17] This submission is concerned with the merits of the inclusion of a 2-hour casual minimum engagement period in the Local Government Industry Award rather than the form of the variation proposed in the relevant draft determination. As we explained in the August decision, the Local Government Associations (including the WALGA) have previously been provided with an opportunity to advance a merits case as to why the 2-hour minimum engagement period should not apply in the Local Government Industry Award, and they declined to take advantage of that opportunity. We said (footnotes omitted):

“[105] In submissions filed on 2 August 2018, the LGA submitted that the inclusion of a two hour daily minimum engagement period for casual employees would require local governments “to change work practices and services that are provided to the community”, and that there were many instances in local government where casual employees were employed for less than 2 hours, such as fitness instructors, umpires, aged and personal care providers, for lunch or break coverage, in tourism centres and casual rangers dealing with one-off issues. It was submitted that to require such employees to be paid for 2 hours’ work would “be a major financial impact and may result in the removal of these positions and services” and would be inconsistent with the current one hour daily minimum engagement period for part-time employees. In the alternative, it was submitted that any minimum engagement period should be only one hour.

[106] In the November decision, we noted that Local Government NSW had requested to be heard orally in relation to the issue of minimum engagement. Accordingly a hearing was listed for 2 February 2018, and a direction was made that any further evidence in relation to the issue be filed by 22 December 2017. No evidence was filed pursuant to this direction by any of the LGA (or by anyone else). In a further submission filed on 1 February 2018, the LGA conceded that they had led no evidence in opposition to the addition of a 2 hour minimum engagement period for casuals and accordingly that there was “no evidentiary basis as to why the this minimum should not be included in the Local Government Industry Award 2010”. At the hearing on 2 February 2018, counsel for the LGA indicated that “we have abandoned any claim or any attempt to move away from the two-hour minimum stay [sic]. That’s no longer a matter that we seek to challenge.” We consider that these concessions by the LGA were properly made, and that no basis has been shown why we should depart from the provisional view expressed in the principal decision in respect of the Local Government Industry Award. Provision for a 2 hour minimum engagement for casual employees shall be added to the award. A draft determination consistent with our general conclusions earlier stated shall be published, and 7 days will be allowed for further comment. The variation shall take effect on 1 October 2018.”

[18] The WALGA’s submissions gave no explanation as to why the merits of this matter should now be re-opened a second time at this very late stage. The submission is rejected.

National Tertiary Education Industry Union

[19] The National Tertiary Education Industry Union (NTEU) submitted that a determination should be made varying the Higher Education (General Staff) Award 2010 (General Staff Award) to provide for a minimum casual engagement period of 2 hours in the same terms as the draft determination which has been published for the Higher Education (Academic Staff) Award 2010 (Academic Staff Award). The submission was advanced on the bases that it could not have been intended to exclude this award from those awards which were to be the subject of a variation to implement a 2-hour minimum engagement period for casuals, and there was a nexus between the academic calendar and the work of academic staff and the requirement to engage casual general/professional staff. This latter proposition was said to be supported by the evidence of Mr David Ward, the Vice-President, Human Resources at the University of New South Wales, summarised in part at paragraph [251] of the principal decision as follows:

“… He said that UNSW professional staff were employed in a wide variety of functions to support the teaching and research of the UNSW, to provide administration and to support on-campus facilities and services. There was a strong operational need for the use of casual professional staff due to the structure of the academic calendar dictating fluctuating staffing needs, the diversity in university operations and that positions were often tied to external research grants.”

[20] The Academic Staff Award does not currently contain any minimum engagement period for casual staff, and was therefore included in the list of awards contained in Attachment G to the principal decision which were to be varied to provide for a 2-hour minimum engagement period. By contrast, clause 12.2 of the General Staff Award provides for minimum engagement periods in the following terms:

12.2 Minimum period of engagement for casual staff

The minimum period of engagement for a casual employee will be as follows:

(i) employees who are students (including postgraduate students) who are expected to attend the university on that day in their capacity as students will have a minimum engagement period of one hour;

(ii) a student will be taken as being expected for attendance on any Monday to Friday during the main teaching weeks of the university, other than public holidays as applied at the relevant university;

(iii) employees with a primary occupation elsewhere (or with the employer) have a minimum period of engagement of one hour; and

(iv) all other casuals must have a minimum period of engagement of three hours.

[21] In examining awards which already contained minimum casual engagement provisions, we stated in paragraph [404] of the principal decision in relation to modern awards which already contained casual minimum engagement periods:

“[404] Modern awards contain a range of different minimum daily engagement periods for casual and part-time employees, and some contain no minimum at all … These provisions generally derive from provisions in pre-reform awards which were in most cases likely formulated by the agreement of the award parties. It can be presumed that in doing so the parties took into account the circumstances of the industries in which they operated that prevailed at the time, but beyond this it is not possible to generalise about the basis upon which such provisions were struck. In particular modern awards, it is clear that that the minimum engagement periods were intended to meet the peculiar circumstances of special types of work or workers…”

[22] In the same paragraph of the principal decision we went on to refer to the General Staff Award as an example of the type of award referred to in the last sentence of the above passage, in that it established a minimum engagement period of 3 hours except that, in respect of students who attend the university as a student on the day they work, or for employees with a primary occupation elsewhere, it was one hour.

[23] Our decision to provide for at least a minimum 2-hour engagement for casual employees was directed at those awards which currently have no minimum engagement period at all, as paragraph [408] of the principal decision makes clear. It was not our intention to modify any modern awards which already contained tailored minimum engagement provisions, as the General Staff Award does. For that reason it was deliberately excluded from the list of awards in Attachment G of the principal decision.

[24] The submission now made by the NTEU is not concerned with correcting any error or omission in the draft determinations issued as a consequence of the August decision, but is in substance a very late attempt to re-open the merits of the current casual minimum engagement provisions in the General Staff Award. The submission is rejected.

Group of Eight Universities

[25] The Group of Eight Universities submitted that there should be three modifications to the draft determination to introduce a 2-hour minimum engagement period for casual employees in the Academic Staff Award. The draft determination contained the following proposed provision:

“13.2 A casual employee must be engaged and paid for at least 2 hours of work on each occasion they are required to attend work, inclusive of any allowance for preparation or associated working time provided for in clause 18.2.”

[26] The first modification sought was that the reference to the requirement to attend work should be clarified to make it clear that it must be a requirement of the employer. We agree, and the provision will be amended accordingly.

[27] The second modification sought was that the reference to any “allowance” for preparation and associated working time might lead to confusion, and that a more accurate description is “incorporated time and payment”. We agree, and this modification will be made.

[28] The third was that the words “inclusive of any other requirement to attend that day” should be added. We reject this. The minimum engagement period was not intended to encompass non-consecutive attendances required by the employer within a single day. This amendment will not be made.

[29] The provision in the final determination will therefore be as follows:

“13.2 A casual employee must be engaged and paid for at least 2 hours of work on each occasion they are required to attend work by the employer, inclusive of any incorporated time and payment for preparation or associated working time provided for in clause 18.2.”

Independent Schools Victoria

[30] In an email dated 28 August 2018, Independent Schools Victoria requested “a conference to discuss the operation, and potential effects, of the model casual conversion clause should it be inserted into the Educational Services (Teachers) Award 2010”. No draft determination to insert a casual conversion clause into this award was published, and the inclusion of this award in the list in paragraph [26] of the August decision was in error. It is not intended that the award be varied to add a casual conversion clause because of the temporal limitation on the employment of casuals under this award. Accordingly there is no need to conduct any further conference.

Outstanding matters

[31] There are two remaining matters concerning the implementation of the principal decision. The first concerns the addition of a casual conversion provision to the Stevedoring Industry Award 2010, and the second concerns the introduction of overtime penalty rates for casual employees in the Horticulture Award 2010. These matters will be the subject of separate consideration by us once we have received all submissions in response to the draft determinations that have been published for these awards.

[32] There is another matter which arose after the principal decision which remains to be dealt with. In submissions filed on 2 August 2017, the ACTU submitted (at paragraphs 34-35) that it had omitted in error the Educational Services (Post-Secondary Education) Award 2010 from the list of awards which should be varied to add a casual conversion clause, and that it should now be varied to include the model clause. We will allow interested parties to file any further written submissions they wish to make in respect of this issue within 28 days of the date of this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2018] FWCFB 4695

 2   [2017] FWCFB 3541, 269 IR 125

 3   One award, the Educational Services (Teachers) Award 2010, was included in this list in error. No draft determination was published for this award.