Fair Work Act 2009
s.160—Variation of modern award

Variation on the Commission’s Own Motion—Hair and Beauty Industry Award 2020
(AM2022/33)

Section 160 of the Fair Work Act 2009 (Cth) – variation on the Commission’s own motion – 4 yearly review of modern awards – award specific penalty rates claims – Hair and Beauty Industry Award 2020 – weekend penalty rates for casual employees – implementation of transitional rates – Schedule B.

Introduction

[1] On 7 October 2021, the Full Bench in AM2017/40 issued a decision 1 and an award variation determination2 (the October 2021 Determination) to vary penalty rate provisions in the Hair and Beauty Industry Award 2010 (the 2010 HABIA Award). The variations included a six-phase increase to weekend penalty rates for casual employees to transition in accordance with the timetables at clauses 31.2(e) and 31.2(f) of the 2010 HABIA Award.

[2] On 3 November 2021, the first transitional increases came into operation pursuant to the October 2021 Determination. The second and third transitional increases came into operation on 31 January 2022 and 30 April 2022.

[3] On 2 August 2022, the Full Bench in AM2016/15 issued a determination 3 finalising the plain language redrafting process for the Hair and Beauty Industry Award and on 9 August 2022, the Hair and Beauty Industry Award 2020 (the 2020 HABIA Award) came into operation.

[4] A dedicated schedule of calculated rates of pay was introduced into the 2020 HABIA Award as part of the redrafting process. The calculated hourly penalty and overtime rates for casual employees are contained at clauses B.2.1, B.2.2, B.4.1 and B.4.2.

[5] The remaining transitional increases will come into operation on 31 December 2022, 30 April 2023 and 31 December 2023. Given that the October 2021 Determination expresses the transitional increases as adjustments to overtime and penalty percentages, an uncertainty or ambiguity arises with respect to the variation of the calculated hourly rates at Schedule B of the 2020 Award.

[6] I consider it is necessary to vary the 2020 HABIA Award pursuant to s 160 of the Act to remove the ambiguity and uncertainty which will arise if the remaining transitional increases come into operation by way of the October 2021 Determination are not reflected in the Schedule of calculated rates.

[7] A determination adjusting the rates in clauses B.2.1, B.2.2, B.4.1 and B.4.2 of the 2020 HABIA Award to reflect the next transitional increase will be issued together with this decision and will come in operation from 31 December 2022.

[8] Two further variation determinations will be issued in due course to reflect the remaining transitional increases due to come into effect in line with the operative dates set out in the table at clauses 22.5 and 23.2 of the 2020 HABIA Award on 30 April 2023 and on 31 December 2023.

ACTING PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2021] FWCFB 6019.

 2   PR734668.

 3   PR744087.