[2022] FWCFB 107

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error

Residual variations
(AM2022/15)

Various industries
JUSTICE ROSS, PRESIDENT DEPUTY PRESIDENT CLANCY COMMISSIONER BISSETT	MELBOURNE, 17 JUNE 2022

Section 160 of the Fair Work Act 2009 (Cth) – variation on the Commission’s own motion – residual variations – provisional views.

[1] Since 2014, the Fair Work Commission (the Commission) has been conducting the 4 yearly review of modern awards (the Review) in accordance with s.156 of the Fair Work Act 2009 (the Act). On 12 December 2018, s.156 of the Act was repealed by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 (the Amending Act) with effect from 1 January 2018. Under the application and transitional provisions of the Amending Act, a review of an award that commenced but was not completed before 1 January 2018 can continue under the terms of the repealed provisions.

[2] In 2019, the Commission announced it would commence a process to finalise the exposure drafts produced during the Review and the consequent variation of each modern award. 1 This process is now largely complete. Since 2020, 116 extensively varied awards have come into operation as a result of the Review. There are 5 modern awards that are part of the plain language project and are yet to be completed:

• Aged Care Award 2010

• Children’s Services Award 2010

• Fast Food Industry Award 2010

• Hair and Beauty Industry Award 2010; and

• Social, Community, Home Care and Disability Industry Award 2010.

[3] We now intend to commence a process of correcting errors and removing ambiguities in modern awards arising from variations made during the Review (the residual variations process). The residual variations process will be commenced on our own motion pursuant to s.160 of the Act. Section 160 provides as follows:

160 Variation of modern award to remove ambiguity or uncertainty or correct error

(1) The FWC may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.

(2) The FWC may make the determination:

(a) on its own initiative; or

(b) on application by an employer, employee, organisation or outworker entity that is covered by the modern award; or

(c) on application by an organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award; or

(d) if the modern award includes outworker terms—on application by an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker terms relate.

[4] The principles applicable to the interpretation and application of s.160 were set out by Asbury C (as she then was) in Property Sales Association of Queensland, Union of Employees re Real Estate Industry Award 2010 2 as follows (footnote omitted):

‘[14] The power in s.160 of the Act to vary a modern award is discretionary. The exercise of the power first requires consideration of whether there is an ambiguity, uncertainty or error in an award. If it is established that this is the case, further consideration is required as to whether the discretion should be exercised. Where there is no ambiguity or uncertainty, or where the Tribunal is not satisfied that there is an error in the terms of an award, there is no jurisdiction to vary a modern award under s.160 of the Act. This is consistent with the clear intention of the legislature to limit the circumstances under which modern awards can be varied outside 4 yearly and annual wage reviews.’

[5] The Full Bench in 4 yearly review of modern awards — Vehicle Manufacturing, Repair Services and Retail Award 2010 3 said the following in relation to whether an error was established in that matter for the purpose of s.160 of the Act:

‘[73] With respect to the SDA, this is not demonstrative of any error. It only demonstrates that a methodology was used which the SDA, with the benefit of hindsight, would prefer not to have been used. Nothing was placed before us to suggest that the AIRC did not intend to use that methodology, or that some mathematical error was made in calculating the rates in accordance with that methodology. We do not accept that disagreement - even a well-founded disagreement - with a previous decision is sufficient to establish an error for the purposes of s.160. What is necessary is to show that some sort of mistake occurred, in that a provision of the award was made in a form which did not reflect the tribunal’s intention.’

[6] The residual variations process will be confined to the correction of errors that are of a minor typographical or structural nature. In addition, a number of enterprise awards and State reference public sector awards contain references to 2010 awards that will need to be varied to refer to the current award titles in order to remove any ambiguity that might arise.

[7] This process is not an opportunity to re-agitate matters already dealt with in the Review.

[8] An initial process of identifying awards with typographical or other obvious minor errors has been conducted by staff of the Commission. A list of the relevant awards, the issues identified, and the amendments proposed to resolve each of the issues is at Attachment A. It appears that these errors are self-evident, and we propose to exercise the power in s.160 to correct them. Any objection to this proposed course of action should be filed by 4pm (AEST) on Wednesday 29 June 2022. In the absence of any objection, we will issue determinations giving effect to the proposed amendments in Attachment A in due course.

[9] Attachment B contains issues identified by staff of the Commission and external parties that are of a slightly more substantial nature. Attachment B sets out our provisional view as to how we intend to resolve these issues. Any parties who oppose any of the provisional views at Attachment B will be given an opportunity to comment.

Next steps

[10] In relation to the proposed amendments set out in Attachment A, any objection to those proposed amendments should be filed by 4pm (AEST) on Wednesday 29 June 2022.

[11] In relation to the provisional views at Attachment B:

(i) Any interested party that opposes any of the provisional views set out in Attachment B to this Statement shall file a submission identifying the basis of their opposition by 4PM (AEST) Wednesday 29 June 2022.

(ii) Any submissions in reply should be filed by 4pm (AEST) on Wednesday 20 July 2022.

[12] In the absence of any submissions opposing our provisional views, we will confirm those views and issue determinations in the terms set out at Attachment B.

[13] In relation to any additional typographical errors identified:

(i) Interested parties are to provide submissions in relation to any additional uncontroversial issues (as described at [6] above) by 4pm (AEST) on Wednesday 29 June 2022.

(ii) Any submissions in reply should be filed by 4pm (AEST) on Wednesday 20 July 2022.

PRESIDENT

Printed by authority of the Commonwealth Government Printer

Attachment A

Awards with identified typographical errors or minor issues:

Award title	Award code	Error/issue	Proposed amendment
Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community 2020	MA000115	Clause 4.5(b)(i) Reference to Nurses Award 2010 should be to 2020	Update the reference to Nurses Award 2020
Airline Operations—Ground Staff Award 2020	MA000048	Clause 20.8(d)(i) Typographical error Contains the word ‘themself’ instead of the word ‘themselves’	Replace the word ‘themself’ with the word ‘themselves’
Ambulance and Patient Transport Industry Award 2020	MA000098	Clause 4.3 Update references to a number of 2010 awards which have been subsequently made into 2020 awards	Update the references as appropriate.
Amusement, Events and Recreation Award 2020	MA000080	Clause 4.6 Update references to a number of 2010 awards which have been subsequently made into 2020 awards	Update the references as appropriate.
Animal Care and Veterinary Services Award 2020	MA000118	Clause 4.4 Update references to a number of 2010 awards which have been subsequently made into 2020 awards	Update the references as appropriate.
Australian Government Industries Award 2016	MA000153	Clause 3.3(f) Update references to a number of 2010 awards which have been subsequently made into 2020 awards	Update the references as appropriate.
Banking, Finance and Insurance Award 2020	MA000019	Clause 4.3 Update reference to Contract Call Centres Award 2010 which has been updated to the 2020 award	Update the reference to Contract Call Centres Award 2020
Building and Construction General On-site Award 2020	MA000020	Clause 4.4 Reference to the Black Coal Mining Industry Award 2010 which has been updated to the 2020 award	Update the reference to Black Coal Mining Industry Award 2020
Building and Construction General On-site Award 2020	MA000020	Clauses 7.2, 16.2, 16.3, 16.4(a)(i) and 16.6 Typographical error Clauses contain the phrase ‘a RDO’. This should be ‘an RDO’ in each instance.	Replace each instance of ‘a RDO’ with ‘an RDO’.
Car Parking Award 2020	MA000095	Clause 4.3 Update references to a number of 2010 awards which have been subsequently made into 2020 awards	Update the references as appropriate.
Cemetery Industry Award 2020	MA000070	Clause 17.1(a) Typographical error The word ‘and’ is misspelled ‘ansd’	Replace the word ‘ansd’ with ‘and’
Cleaning Services Award 2020	MA000022	Clause 4.2(c) Update reference to General Retail Industry Award 2010 which has been updated to the 2020 award	Update the reference to General Retail Industry Award 2020
Clerks—Private Sector Award 2020	MA000002	Clause 18.1(b)(i) Typographical error The word ‘of’ appears at the clause (b) and again at the start of clause (i)	Delete the second instance of the word ‘of’
Clerks—Private Sector Award 2020	MA000002	Clause 4.4 Update references to a number of 2010 awards which have been subsequently made into 2020 awards	Update the references as appropriate.
Clerks—Private Sector Award 2020	MA000002	Schedule A.3.1(d) Typographical error The word ‘employees’ is misspelled ‘emplyees’	Replace the word with the correct spelling.
Clerks—Private Sector Award 2020	MA000002	Schedule A.3.2(c) Typographical error The word ‘such’ is misspelled ‘ssuch’	Replace the word with the correct spelling.
Clerks—Private Sector Award 2020	MA000002	Schedule A.4.3(a)(ii) Typographical error The word ‘equipment’ is misspelled ‘equioment’	Replace the word with the correct spelling.
Coal Export Terminals Award	MA000045	Schedule A.3.5 Reference to the Manufacturing and Associated Industries and Occupations Award 2010 which has subsequently been made into 2020 award	Update the reference to Manufacturing and Associated Industries and Occupations Award 2020
Commercial Sales Award 2020	MA000083	Clause 4.2 Reference awards excluded from coverage includes Graphic Arts, Printing and Publishing Award 2010 which has subsequently been made into 2020 award	Update the reference to Graphic Arts, Printing and Publishing Award 2020
Corrections and Detention (Private Sector) Award 2020	MA000110	Clause 4.3 Update references to a number of 2010 awards which have been subsequently made into 2020 awards	Update the references as appropriate.
Dry Cleaning and Laundry Industry Award 2020	MA000096	Clause 4.3 References to awards excluded from coverage includes two 2010 awards that have subsequently been made into 2020 awards	Update the references to the General Retail Industry Award and the Health Professionals and Support Services Award to 2020
Educational Services (Schools) General Staff Award 2020	MA000076	Clause 14.8 Typographical error Clause contains the phrase ‘a RDO’. This should be ‘an RDO’.	Replace the words ‘a RDO’ with ‘an RDO’.
Electrical, Electronic and Communications Contracting Award 2020	MA000025	Clause 18.6(a)(ii) Typographical error Contains the word ‘themself’ instead of the word ‘themselves’	Replace the word ‘themself’ with the word ‘themselves’
Electrical Power Industry Award 2020	MA000088	Clause 4.3 References to awards excluded from coverage includes three 2010 awards that have subsequently been made into 2020 awards.	Update the references as appropriate.
Fitness Industry Award 2020	MA000094	Schedule A Typographical error: A.6.1(a)(i) “qualifications” should be “qualification”.	Amend clauses as indicated
Gardening and Landscaping Services Award 2020	MA000101	Clause 4.3 Update references to a number of 2010 awards which have been subsequently made into 2020 awards	Update the references as appropriate.
GrainCorp Country Operations Award 2015	MA000138	Clause 3.2 References to three awards which have been subsequently made into 2020 awards	Update the references as appropriate.
Health Professionals, Medical Scientists and Support Services (Victoria) State Reference Public Sector Modern Award 2018	MA000157	Clause 4.2 References the Health Professionals and Support Services Award 2010 which has subsequently been made into a 2020 award.	Update the reference to Health Professionals and Support Services Award 2020
Higher Education Industry—General Staff—Award 2020	MA000007	Clause 19.2 Typographical error Clause contains the words ‘a employee’ rather than ‘an employee’.	Replace the words ‘a employee’ with the words ‘an employee’.
Horse and Greyhound Training Award 2020	MA000008	Clause 18.9(b) Incorrect cross-reference in clause that refers to clause 18.9(b). This should refer to clause 18.9(a).	Change cross reference to 18.9(a)
Hydrocarbons Industry (Upstream) Award 2020	MA000062	Clauses 4.4 and A.4.7(b) Reference to the Manufacturing and Associated Industries and Occupations Award 2010 which has subsequently been made into 2020 award	Update the reference to Manufacturing and Associated Industries and Occupations Award 2020
Journalist Published Media Award	MA000076	Clause 16.3(f)(i) Typographical error Contains the word ‘themself’ instead of the word ‘themselves’	Replace the word ‘themself’ with the word ‘themselves’
Local Government Award 2020	MA000112	Clause 4.3 References to awards excluded from coverage includes two 2010 awards that have subsequently been made into 2020 awards	Update the references to the Nurses Award and the Educational Services (Teachers) Award to 2020
Manufacturing and Associated Industries and Occupations Award 2020	MA000010	Clause 2 Reference to Professional Employees Award 2010 in the definition for ‘professional field’ has subsequently been made into a 2020 award	Update the reference to the Professional Employees Award 2020
Manufacturing and Associated Industries and Occupations Award 2020	MA000010	Clause 4.10(i) Reference to Joinery and Building Trades Award 2010 has subsequently been made into a 2020 award	Update the reference to the Joinery and Building Trades Award 2020
Manufacturing and Associated Industries and Occupations Award 2020	MA000010	Clause A.3.1 Reference to Professional Employees Award 2010 has subsequently been made into a 2020 award	Update the reference to the Professional Employees Award 2020
Manufacturing and Associated Industries and Occupations Award 2020	MA000010	Clause B.6.1(b) Typographical error Clause contains the words ‘An Vehicle’ rather than ‘A Vehicle’.	Replace the word ‘An’ with the word ‘A’.
Marine Towage Award 2020	MA000050	Clause 4.3(b) Typographical error Repeated word - “the”	Remove the repeated word
Marine Towage Award 2020	MA000050	Clause 4.3(c)(ii) Reference to Electrical, Electronic and Communications Contracting Award 2010 has subsequently been made into a 2020 award	Update the reference to Electrical, Electronic and Communications Contracting Award 2020
Marine Towage Award 2020	MA000050	Clause 16.3(d)(ii) Typographical error Contains the word ‘themself’ instead of the word ‘themselves’	Replace the word ‘themself’ with the word ‘themselves’
Maritime Offshore Oil and Gas	MA000086	Clause 4.3 Update references to a number of 2010 awards which have been subsequently made into 2020 awards	Update references as appropriate.
Market and Social Research Award 2020	MA000030	Clause 4.3(a) Reference to Higher Education Industry—Academic Staff— Award 2010 has subsequently has been made into a 2020 award	Update reference to Higher Education Industry—Academic Staff— Award 2020
Meat Industry Award 2020	MA000059	Clause 4.3(b) References to awards excluded from coverage includes three 2010 awards that have subsequently been made into 2020 awards.	Update the references as appropriate.
Meat Industry Award 2020	MA000059	Clause 15.1(b) Typographical error: Clause states ‘Any employment called upon...’ should say ‘An employee called upon…’	Insert the following underlined text at the start of clause 15.1(b): ‘An employee called upon…’
Mining Industry Award 2020	MA000011	Clause 4.3(b) Reference to Black Coal Mining Industry Award 2010 which has subsequently been made into a 2020 award	Update the reference to Black Coal Mining Industry Award 2020
Nursery Award 2020	MA000033	Clause 4.3 References to awards excluded from coverage includes three 2010 awards that have subsequently been made into 2020 awards.	Update the references as appropriate.
Nurses Award 2020	MA000034	Clause 28.5 Typographical error Contains the phrase “day off will be take within” rather than “day off will be taken within”.	Replace the word “take” with the word “taken”.
Nurse and Midwives (Victoria) State Reference Public Sector Award 2015	MA000125	Clause 4.2(b) Reference to the Nurses Award 2010 which has subsequently been made into a 2020 award	Update reference to Nurses Award 2020
Oil Refining and Manufacturing Award 2020	MA000072	Clause A.1.5 Reference to the Manufacturing and Associated Industries and Occupations Award 2010 which has subsequently been made into a 2020 award	Update reference to Manufacturing and Associated Industries and Occupations Award 2010.
Pharmaceutical Industry Award 2020	MA000069	Clause 4.3(b) Reference to the Food, Beverage and Tobacco Manufacturing Award 2010 which has subsequently been made into a 2020 award.	Update reference to Food, Beverage and Tobacco Manufacturing Award 2020
Pharmacy Industry Award 2020	MA000012	Schedule X.2 Cross reference in clause X.2 to clause G.4 is incorrect and should reference to schedule X	Delete cross reference to G.4 and replace it with a cross reference to schedule X
Pharmacy Industry Award 2020	MA000012	Clause C.2.1 Clause contains the following text: Meal allowance—overtime which exceeds 1.5 hours’ overtime The repetition of the word “overtime” is redundant	Delete the text and insert the following: Meal allowance—overtime which exceeds 1.5 hours
Plumbing and Fire Sprinklers Award 2020	MA000036	Clause 21.10(d)(ii) Typographical error Contains the word ‘themself’ instead of the word ‘themselves’	Replace the word ‘themself’ with the word ‘themselves’
Plumbing and Fire Sprinklers Award 2020	MA000036	Clause 15.5(a)(i) Clause contains the phrase ‘a RDO’. This should be ‘an RDO’.	Replace the words ‘a RDO’ with ‘an RDO’.
Plumbing and Fire Sprinklers Award 2020	MA000036	Clause D.1.7 Table contains a repeat of the word “hourly” in the following phrase “ordinary hourly rate”.	Delete the repeated instance of the word “hourly”.
Ports, Harbours and Enclosed Water Vessels Award 2020	MA000052	Clause 4.5(b) Reference to the Electrical, Electronic and Communications Contracting Award 2010 which has subsequently been made into a 2020 award.	Update the reference to Electrical, Electronic and Communications Contracting Award 2020
Port Authorities Award 2020	MA000051	Clause 4.3 References to awards excluded from coverage includes three 2010 awards that have subsequently been made into 2020 awards.	Update the references as appropriate.
Premixed Concrete Award 2020	MA000057	Clause 4.3 Reference to the Building and Construction General On-site Award 2010 which has subsequently been made into a 2020 award.	Replace the reference to Building and Construction General On-site Award 2020
Premixed Concrete Award 2020	MA000057	Clause 20.6(d) Typographical error Contains the word ‘themself’ instead of the word ‘themselves’	Replace the word ‘themself’ with the word ‘themselves’
Professional Employees Award 2020	MA000065	Clause 4.2 References to two awards that have subsequently become 2020 awards: Black Coal Mining Industry Award 2010 and Nurses Award 2010	Update the references to Black Coal Mining Industry Award 2020 and Nurses Award 2020
Real Estate Industry Award 2020	MA000106	Clause 17.9(b) Table refers to a “Motor cycle allowance” rather than “Motorcycle allowance”	Replace the words “Motor cycle” with the word “Motorcycle”
Restaurant Industry Award 2020	MA0000119	Clause 4.2 Reference to awards excluded from coverage includes the Registered and Licenced Clubs Award 2010 which has subsequently been made into 2020 award	Update the reference to Registered and Licenced Clubs Award 2020
Seafood Processing Award 2020	MA000068	Clause 4.4 References to awards excluded from coverage include a number of 2010 awards that have subsequently been made into 2020 awards	Update the references that have been made into 2020 awards
Seagoing Industry Award 2020	MA000122	Clause 15.4 The third subclause under clause 15.4 is incorrectly numbered (a).	Replace the letter (a) on the third subclause with (c).
State Government Agencies Award 2020	MA000121	Clause 4.3 References to awards excluded from coverage include a number of 2010 awards that have subsequently been made into 2020 awards	Update the references that have been made into 2020 awards
Stevedoring Industry Award 2020	MA000053	Clause 4.3 References to awards excluded from coverage include a number of 2010 awards that have subsequently been made into 2020 awards	Update the references that have been made into 2020 awards
State Government Agencies Award 2020	MA000121	Clause 4.3 References to awards excluded from coverage include a number of 2010 awards that have subsequently been made into 2020 awards	Update the references that have been made into 2020 awards
Stevedoring Industry Award 2020	MA000053	Clause 2 Definition of maintenance tradesperson special class has a capital A in the word “And” that should be lower case.	Replace the word ‘And’ with the word ‘and’.
Stevedoring Industry Award 2020	MA000053	Clause 4.3 Reference to awards excluded from coverage the Sugar Industry Award 2010 and the Electrical, Electronic and Communications Contracting Award 2010 which have subsequently been made into 2020 awards.	Update the references that have been made into 2020 awards
Telstra Award 2015	MA000123	Clauses 3 and 4 References to General Retail Industry Award 2010 which has subsequently been updated into a 2020 award.	Update reference to General Retail Industry Award 2020
Travelling Shows Award 2020	MA000102	Clause 4.4 Reference to awards excluded from coverage includes the General Retail Industry Award 2010 which has subsequently been made into 2020 award	Update the references that have been made into 2020 awards
Travelling Shows Award 2020	MA000102	Clause 18.3(c) Typographical error Contains the word ‘themself’ instead of the word ‘themselves’	Replace the word ‘themself’ with the word ‘themselves’
Viterra Bulk Handling of Grains, Pulses and Minerals Award 2015	MA000136	Clause 4.2 Reference to the Stevedoring Industry Award 2010 which has subsequently been made into a 2020 award	Update reference to Stevedoring Industry Award 2020
Water Industry Award 2010	MA000103	Clause 4.4 References to awards excluded from coverage include a number of 2010 awards that have subsequently been made into 2020 awards	Update the references that have been made into 2020 awards

Attachment B

Award title

Award code

Error/issue

Provisional view

Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community 2020

MA000115

Schedule C.1.1

Summary of monetary allowances omits the hourly Nauseous work allowance. The Nauseous work allowance was included in the award following a Full Bench decision ([2019] FWCFB 3827). The weekly and hourly amounts were included in the decision however the hourly amount was omitted from the determination.

Insert the following row in the table appearing in Schedule C.1.1:

Nauseous work allowance—per hour

18.2(b)

0.05

0.50

per hour or part thereof

Airline Operation – Ground Staff Award 2020

MA000048

Clause F.4.3(a)

The words “or F.4.4” have been omitted from the end of this clause.

Amend clause F.4.3(a) as follows:

(a) Clause F.4.3 applies despite anything to the contrary in clause F.4.2 or F.4.4.

Airport Employees Award 2020

MA000049

Clause F.4.3(a)

The words “or F.4.4” have been omitted from the end of this clause.

Amend clause F.4.3(a) as follows:

(a) Clause F.4.3 applies despite anything to the contrary in clause F.4.2 or F.4.4.

Aluminium Industry Award 2020

MA000060

Clause 20.1(a)

Contains the following phrase “Except where provided otherwise in clause 20.1”. The

cross reference to clause 20.1 appears to be an error. In the 2010 award the equivalent provision in clause 21.1(a) refers to “Except where provided otherwise in this clause”. This clause refers to the entirety of clause 21.

Make the following amendment to clause 20.1(a):

“Except where provided otherwise in clause 20”.

Cement, Lime and Quarrying Industry Award 2020

MA000055

Clause 18.2(d)

Clause is structured so that it requires bullet points. Clause could be restructured so that the bullet points are numbered which makes the provisions easier to refer to.

Restructure clause 18.2 as follows:

(d) First aid allowance

An employee:

(i) who has been trained to provide first aid;
(ii) who holds a current and appropriate first aid qualification (such as a certificate from St John Ambulance or similar body); and
(iii) who is appointed by the employer to act as a first aider

is entitled to the following first aid allowances which will be paid for all purposes:

Industry	$ per week
Cement and lime industry	22.71
Quarrying industry	16.59

Coal Export Terminals Award

MA000045

Clause 13.3

The heading of this clause is “Penalty rates—dayworkers”. What follows is a clause providing ordinary hours for “Employees, other than shiftworkers”. The heading should reflect the contents of the clause. In addition, the clause under the heading is an (a) clause with no (b) clause which is inconsistent with the usual award structure

Delete clause 13.3 and replace with the following:

13.3 Employees other than shiftworkers

Employees, other than shiftworkers, may be required to work up to 10 ordinary hours per day, between the hours of 6.00 am and 6.00 pm Monday to Saturday. If the employer and the majority of affected employees agree, up to 12 ordinary hours per day may be worked.

Educational Services (Post Secondary Education)

MA000075

Clauses 11.6 and 11.7

Sessional employment is a separate category from casual employment and should be removed from the casual employees clause. See Casual Terms review Group 3 Statement [2021] FWCFB 5123 at para [34].

Remove clauses 11.6 and 11.7 from the casual employees clause and create a new clause 12 for sessional employees and insert those clauses in there.

Renumber clauses in the award accordingly.

Electrical, Electronic and Communications Contracting Award 2020

MA000025

Clause 2.3

Definition of ‘ordinary hourly rate’ does match the manner in which that rate is actually calculated and is as follows:

ordinary hourly rate means the hourly rate for an employee’s classification specified in clause 16.2, plus the industry allowance. Where an employee is entitled to additional all-purpose allowances, these allowances form part of that employee’s ordinary hourly rate.

Amend the definition of ordinary hourly rate as follows:

ordinary hourly rate means the minimum weekly rate ~~the hourly rate~~ for an employee’s classification specified in clause 16.2, plus the industry allowance and any applicable additional all-purpose allowances divided by 38. ~~Where an employee is entitled to additional all-purpose allowances, these allowances form part of that employee’s ordinary hourly rate.~~

Food, Beverage and Tobacco Manufacturing Award 2020

MA000073

Clause D.4.3(a)

The words “or D.4.4” have been omitted from the end of this clause.

Amend clause D.4.3(a) as follows:

(a) Clause D.4.3 applies despite anything to the contrary in clause D.4.2 or D.4.4.

Fitness Industry Award 2020

MA000094

Clause A.6.1(b)

Reference to AQF Certificate level III should be to level IV.

Amend clause A.6.1(b) by deleting “III” and inserting “IV” in its place.

Hospitality Industry (General) Award 2020

MA000009

Clause 1.2

The clause contains the phrase “This modern award, as varied,”. The phrase “, as varied” is not required.

Amend clause 1.2 as follows:

This modern award~~, as varied,~~ commenced operation on 1 January 2010. The terms of the award have been varied since that date.

Hospitality Industry (General) Award 2020

MA000009

Clause 18.4(a)

Junior rates can apply to casino gaming employees so there should be a reference to Table 4 in addition to the reference to Table 3

Include the following underlined text at the end of clause 18.4(a):

‘…otherwise be applicable under Table 3—Minimum rates or Table 4—Casino gaming minimum rates.

Joinery and Building Trades Award 2020

MA000029

Clauses B.4.5–B.4.8 and B.5.5–B.5.8

These clauses summarise the rates of pay for apprentices commencing prior to 1 January 2014. These apprentices are based on length of service rather than stages and should be in years rather than stages to correctly reflect the provisions in clause 19.5(b).

Delete the first column of clauses B.4.5 and B.4.6 and insert the following:

1^st year

2^nd year

3^rd year

4^th year

Delete the first column of clauses B.4.7- B.4.8 and insert the following:

1^st year

2^nd year

3^rd year

Delete the first column of clauses B.5.5 and B.5.6 and insert the following:

1^st year – apprentice glazier

1^st year – all others

2^nd year – apprentice glazier

2^nd year – all others

3^rd year – apprentice glazier

3^rd year – all others

4^th year – apprentice glazier

4^th year – all others

Delete the first column of clauses B.5.7 and B.5.8 and insert the following:

1^st year – apprentice glazier

1^st year – all others

2^nd year – apprentice glazier

2^nd year – all others

3^rd year – apprentice glazier

3^rd year – all others

Joinery and Building Trades Award 2020

MA000029

Clauses E.6.1

The table in clause E.6.1 contains two separate entries in the table for “Transport and Logistics”.

Delete the first entry for “Transport and Logistics” in the table in clause E.6.1 and insert the following:

Manufacturing and Engineering (technical)

II, III

Labour Market Assistance Industry Award 2020

MA000099

Clause 12.4(a)

This clause provides for a loading of ‘33.3% of the minimum hourly rate’. appears that this should be 33.3% of the casual hourly rate (i.e minimum rate plus casual loading). This accords with clause 12.3 and the wording of the Labour Market Assistance Industry Award 2010.

Make the following amendments to clause 12.4(a):

(a) incorporating a loading of 33.3% of the ~~minimum~~ casual hourly rate into the hourly rate, provided that this rate is separately expressed; or

Legal Services Award 2020

MA000116

Schedule A.4.3

All of the other levels include in the core skills the skills of the levels above. Level 4 is missing the core skill of levels 1, 2 and 3 and above.

Include the following underlined text:

A.4.3 Core skills

As per Levels 1, 2 and 3 together with the following:

Manufacturing and Associated Industries and Occupations Award 2020

MA000010

Clause 34.1

Clause states “Annual leave does not apply to a casual employee” however clause 47.1 provides that employees in the technical field are entitled to annual leave and annual leave loading on a pro-rata basis.

Insert the following underlined text at the start of clause 34.1:

‘Except as provided for in clause 47, annual leave does not apply to a casual employee.’

Manufacturing and Associated Industries and Occupations Award 2020

MA000010

Clause G.4.3(a)

The words “or G.4.4” have been omitted from the end of this clause.

Amend clause G.4.3(a) as follows:

(a) Clause G.4.3 applies despite anything to the contrary in clause G.4.2 or G.4.4.

Miscellaneous Award 2020

MA000104

Clause E.4.3(a)

The award contains the words “clause E.4.4 or E.3.2”. The cross references are incorrect and should be to E.4.2 and E.4.4

Amend clause E.4.3(a) as follows:

(a) Clause E.4.3 applies despite anything to the contrary in clause E.4.2 or E.4.4.

Mobile Crane Hiring Award 2020

MA000032

Schedule C.1

Typographical error

The first sentence of the clause is missing text:

“The following wage-related allowances, defined in clause 2—Definitions as…”

Insert the following underlined text and delete the struck out text in Schedule C.1:

The following wage-related allowances are based on the standard rate, as defined in clause 2—Definitions as the minimum hourly rate for a mobile crane employee (MCE) level 1 in clause 16.1 = $23.67.

Nurses Award 2020

MA000034

Clause 11.1

The definition of ‘casual hourly rate’ in clause 2 says it has the meaning given in clause 11.1. However, clause 11.1 does not directly define ‘casual hourly rate’. In addition, clause 11.1 has some repetitive phrasing at the end of the clause.

Amend clause as follows
For each ordinary hour worked, a casual employee must be paid the following:
(a) the minimum hourly rate applicable to their classification and pay point; and
(b) a loading of 25% of the minimum hourly rate applicable to their classification and pay point,.
This is the casual hourly rate. ~~for the classification in which they are employed.~~

Pharmacy Industry Award 2020

MA000012

Clause 1.2

The clause contains the phrase “This modern award, as varied,”. The phrase “, as varied” is not required.

Amend clause 1.2 as follows:

This modern award~~, as varied,~~ commenced operation on 1 January 2010. The terms of the award have been varied since that date.

Plumbing and Fire Sprinklers Award 2020

MA000036

Clause 2

Definition of ‘ordinary hourly rate’ does not match the manner in which that rate is actually calculated and is as follows:

ordinary hourly rate means the hourly rate for the employee’s classification specified in clause 18—Minimum rates, plus any allowances specified as being included in the employee’s ordinary hourly rate or payable for all purposes.

Amend the definition of ordinary hourly rate as follows:

ordinary hourly rate means the minimum weekly rate ~~the hourly rate~~ for the employee’s classification specified in clause 18—Minimum rates, plus any allowances specified as payable for all purposes, divided by 38 ~~as being included in the employee’s ordinary hourly rateor payable for all purposes~~.

Plumbing and Fire Sprinklers Award 2020

MA000036

Clause 21.3(e)(v)

This clause contains a list of allowances that are no longer payable due to the inclusion of the allowance in clause 21.3(e)(ii). The dollar amounts are based on the standard rate and need to be updated each AWR in spite of the allowances no longer being payable

Amend clause 21.3(e)(v) as follows:

• Handling insulation material~~—$0.95 per hour (NOTE: standard rate is defined in the definitions clause of this award as the tradesperson Level 1 rate of pay)~~;
• Use of explosive powered tools~~—$1.80 per hour~~;
• Using toxic substances~~—$0.95 per hour~~;
• Working in close proximity to employees engaged in using toxic substances~~—$0.76~~;
• Working where fumes are present~~—rate as agreed~~;
• Asbestos work requiring use of materials containing asbestos or work in close proximity to employees using such materials~~—$2.56 per hour~~.

Plumbing and Fire Sprinklers Award 2020

MA000036

Clauses E.1.3(c) and E.2.3(c)

The top row of column headings for the table in clauses E.1.3(c) and E.2.3(c) divides the provisions into ‘Plumbing and mechanical employees’ and ‘All employees’. The provision is for overtime for trainee apprentices. Clauses 18.2(b)(iv)-(v) and 18.2(c)(iv)-(v) provide that trainee apprentices will be paid a percentage of the plumbing and mechanical services tradesperson. It appears that the trainee apprentice rates only apply to plumbing and mechanical services employees. An earlier exposure draft of the clause E.1.3(c) also contained a column of rates for fire sprinkler employees that was removed as part of the process of the 4 yearly review. It appears that the top row has been retained even though the distinction between ‘Plumbing and mechanical employees’ and ‘All employees’ is no longer relevant.

Delete the top row of the tables in clauses E.1.3(c) and E.2.3(c)

Racing Clubs Events Award 2020

MA000013

Clause A.2.4(a)

This clause says:

‘adult hourly rates in clause A.2 will be adjusted by dividing the dollar amount of the increase by 38 and adding the following loadings:’

Only the rates in clause A.2.3 are adjusted as described in A.2.4(a). The clause reference to A.2 is inaccurate.

Delete the clause reference in clause A.2.4(a) to clause A.2 and insert a clause reference to clause A.2.3.

Restaurant Industry Award 2020

MA000119

Clause 1.2

The clause contains the phrase “This modern award, as varied,”. The phrase “, as varied” is not required.

Amend clause 1.2 as follows:

This modern award~~, as varied,~~ commenced operation on 1 January 2010. The terms of the award have been varied since that date.

Sugar Industry Award 2020

MA000087

Clause H.4.3(a)

The words “or H.4.4” have been omitted from the end of this clause.

Amend clause H.4.3(a) as follows:

(a) Clause H.4.3 applies despite anything to the contrary in clause H.4.2 or H.4.4.

Wine Industry Award 2020

MA000090

Schedule B.1.1 and B.2.1– Sunday – cellar door

The cellar door sales stream in Schedule A.3 provides for classification grade 1-4, however the tables at Schedule B.1.1 provides a level 5 rate for Sunday – cellar door.

Delete the rate “50.32” from the table at B.1.1 and delete the rate “56.61” from the table at B.2.1

Insert footnote for B.1.1 and B.2.1 to confirm Grade 5 rates apply to vineyard employees only.

1 [2019] FWCFB 6077

2 [2012] FWA 10134.

3 [2016] FWCFB 4418 at [73]