DECISION

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

4 yearly review of modern awards—Plain language re-drafting—Fast Food Industry Award 2010
(AM2016/15)

4 yearly review of modern awards – plain language re-drafting – Fast Food Industry Award 2010

Introduction

[1] In a Statement issued on 28 October 2020 1 (the October 2020 Statement) we set out the timetable for the plain language re-drafting of the Fast Food Industry Award 2010 (the current award) and also published a plain language exposure draft of the current award (PLED) and a document which compared the terms of the current award with the PLED2.

[2] In accordance with the October 2020 Statement submissions were received from the following interested parties:

•  Australian Business Industrial and the NSW Business Chamber (ABI) (25 November 2020);

•  Australian Industry Group (Ai Group) (25 November 2020);

•  The Shop, Distributive and Allied Employees’ Association (SDA) (25 November 2020).

[3] Submissions in reply were received from:

•  Ai Group (9 December 2020);

•  SDA (9 December 2020).

[4] In a statement issued on 21 January 2021 3 (the January 2021 Statement) we set out minor errors identified by the parties in their submissions and at paragraph [4] expressed the provisional view that these minor amendments listed should be made to the PLED. At paragraph [6] we set out the issues for determination, as identified by the parties in their submissions. A summary of submissions4 was published on the same date together with a revised PLED5 (January PLED), incorporating the minor amendments provisionally made.

[5] A conference of the interested parties was held on 12 February 2021 6 (the February 2021 conference) and an agenda,7 setting out proposed resolutions to certain items, was published prior to the conference.

[6] In a statement issued on 18 February 2021 8 (the February 2021 Statement) at paragraph [7] we confirmed our provisional view that the minor errors listed as items 14, 25, 29, 34, 42, 44, 46, 47, 49, 56, 57, 59, 60, 61, 62, 63, and 64 in the summary of submissions were now resolved. At paragraph [9] we confirmed that the corrections proposed by Ai Group at the conference were not opposed.

[7] The February 2021 Statement notes at paragraph [11], that apart from three exceptions, no party took issue with the proposed resolutions set out in the agenda. The three exceptions are items 4, 13 and 35. The SDA sought the opportunity to make further submissions in respect of these items. We confirmed that, apart from those three exceptions, we would adopt the proposed solutions set out in the agenda. A revised summary of submissions 9 and a revised PLED10 (February 2021 PLED), incorporating the confirmed solutions was published on 18 February 2021. Items 1, 3, 5, 6, 7, 8, 9, 16, 23, 24, 26, 27, 32, 36, 41, 43, 48, 58 and 65 listed in the summary of submissions are now resolved.

[8] In relation to the outstanding items listed in the summary of submissions the parties sought an opportunity to file further written submissions on certain items. In the February 2021 Statement we stated that items 2, 28, 31, 33, 37, 38 and 45 would be determined based on submissions already filed and items 4, 10, 11, 12, 13, 15, 17, 18, 19, 20, 21, 22, 25, 30, 35, 39, 40, 50, 51, 52, 53, 54 and 55 would be determined based on submissions already filed and further written submissions.

[9] In accordance with the directions of the February 2021 Statement 11 submissions were received from the following interested parties:

•  Ai Group (26 February 2021);

•  SDA (26 February 2021);

•  Ai Group (8 March 2021).

[10] Submissions in reply were received from:

•  Ai Group (15 March 2021);

•  SDA (15 March 2021)

Outstanding matters

[11] We now turn to deal with the outstanding items to be determined, as listed at [8] above.

Item 2 – clause 2—definition of ‘adult employee’

[12] Item 2 relates to the definition of ‘adult employee’ at clause 2 of the PLED. The SDA object to the definition of ‘adult employee’ as being an employee aged 21 and over. They submit that the definition prejudices the rights of employees aged 18 and over who are recognised as adults in other legal jurisdictions and list Australian jurisdictions recognising adults aged 18 and over. 12

[13] Ai Group disagree that the proposed definition of ‘adult employee’ is prejudicial to the right of employees aged 18 and over. 13

[14] The term ‘adult employee’ was introduced at clause 16.1 in the Fast Food Award exposure draft published on 16 November 2016. In the current award, at clause 18, an employee aged 20 years or younger is classified as a junior employee and paid 40% to 90% of the weekly adult wage, depending on the person’s age. Employees aged 21 and over are adult employees.

[15] Definitions of ‘adult employee’ and ‘junior employee’ were first inserted in the plain language exposure drafts during the re-drafting of the Hospitality Industry (General) Award 2010 (Hospitality Award). The plain language drafter explained that the definition is necessary as the term is used in the exposure draft and the word ‘adult’ has an ordinary meaning different to its use in the award. 14

[16] The comments made by the plain language drafter in relation to the Hospitality Award PLED are also relevant to the Fast Food Award PLED. We reject the SDA’s contention that the proposed definition is prejudicial to the rights of employees aged 18 and over. The definition has been inserted to make clear to the reader when junior rates of pay apply. We do not propose to change or delete the definition of ‘adult employee’ from clause 2—Definitions. Item 2 is now resolved.

Item 4 – clause 2—definition of ‘standard rate’; item 35 – clause 17.2—Broken Hill allowance

[17] Items 4 and 35 can be dealt together. Item 4 relates to the definition of ‘standard rate’ at clause 2 of the PLED and item 35 relates to the Broken Hill allowance at clause 17.2 of the PLED. In the agenda published before the February 2021 conference it was noted that, in relation to both items, no change to the PLED was necessary. 15 However, at the February 2021 conference the SDA sought the opportunity to make further submissions on the two items and the parties were directed to file further submissions.

[18] The definition of ‘standard rate’ at clause 3 of the current award is:

‘standard rate means the minimum weekly wage for a Fast Food Employee Level 2 in clause 17—Minimum weekly wages. Where an allowance is provided for on an hourly basis, a reference to standard rate means 1/38th of the weekly wage referred to above.’

[19] The definition of ‘standard rate’ at clause 2 of the PLED is:

‘standard rate means the minimum hourly rate for a fast food employee level 2 in Table 3—Minimum rates.’

[20] The Broken Hill allowance in clause 19.9 of the current award is:

‘An employee in the County of Yancowinna in New South Wales (Broken Hill) will in addition to all other payments be paid an allowance for the exigencies of working in Broken Hill of 4.28% of the standard rate.’

[21] The Broken Hill allowance in clause 17.2 of the PLED is:

‘An employer must pay an employee at a workplace within the County of Yancowinna in New South Wales (Broken Hill) an allowance of $36.92 per week. This allowance is in addition to all other payments.’

[22] The calculation of the Broken Hill allowance is contained in Schedule B of the PLED:

‘B.1.1 The following wage-related allowances are based on the standard rate, defined in clause 2—Definitions as the minimum hourly rate for a fast food employee level 2 in clause 15—Minimum rates ($22.70).

[23] The SDA object to the change in definition of the ‘standard rate’ from a weekly rate to an hourly rate and to the deletion of the reference to hourly allowances. They submit that the definition in the current award clearly defines the standard rate as a weekly rate while making allowance for an hourly calculation where necessary. They submit that altering the definition from its current wording to refer only to an hourly rate is unwarranted.

[24] The SDA further submit that, while an award provides the minimum entitlements for an industry, it also provides a practical framework for enterprise bargaining and provision in the award for a standard weekly rate allows for enterprise agreements to have a clear reference point if weekly allowances are negotiated for. They submit that an example is the re-definition of the Broken Hill allowance from being calculated based on the weekly standard rate. They submit that given the negligible benefit, the standard rate in the PLED should refer to a weekly and an hourly rate. 16

[25] Ai Group submit that the changes proposed by the SDA are unnecessary in relation to both items 4 and 35, considering the approach taken in Schedule B of the PLED. They submit that each of the relevant allowances in Schedule B are expressed as a percentage of the standard hourly rate. 17

[26] The term ‘standard rate’ was re-defined as an hourly rate in the Fast Food Award exposure draft published on 16 November 2016. The weekly and hourly wage-related allowances were expressed as percentages of the standard hourly rate. The definition for the standard rate at clause 2 of the PLED is simpler and easier to understand and it would be an unnecessary complication to have two standard rates.

[27] The Broken Hill allowance has always been expressed as an amount paid on a weekly basis and was changed from being expressed as 4.28% of the standard weekly rate to being expressed as 162.7% of the standard hourly rate, as set out at clause B.1.1 of the in the Fast Food Award exposure draft published on 16 November 2016. Clause 17.2 of the PLED provides that the allowance is paid on a weekly basis, in line with the current award.

[28] As there is no material effect on any entitlement and the definition of ‘standard rate in clause 2 of the PLED is simpler, we do not propose to make the changes suggested by the SDA. Items 4 and 35 are now resolved.

Items 7, 8 and 9 – clause 4.2—Coverage (Industry definition)

[29] Clause 4.2 of the PLED was amended after the February 2021 conference 18 to incorporate the solutions to items 7, 8 and 9. As a result of those amendments, the SDA seek further amendments to the clause. Clause 4.2 of the PLED, with the changes resulting from items 7, 8 and 9 states:

‘4.2 In this award fast food industry means the industry of taking orders for, preparing, selling or delivering any of the following:

(a) food or meals, snacks and/or beverages sold to the public primarily for consumption away from the point of sale; or

(b) food or take away foods and/or beverages packaged, sold or served in such a way as to allow them to be consumed away from the point of sale should the customer so decide; or

(c) food or beverages sold or served in food courts, shopping centres or retail complexes, excluding coffee shops, cafes, bars and restaurants that primarily provide a sit-down service inside the catering establishment.’

[30] In summary, the SDA seek the following further amendments:

•  the words ‘and/or’ be included in the industry definition at clause 4.2 of the PLED where they appear in the definition of ‘fast food industry’ at clause 3 of the current award;

•  the word ‘or’ at the end of each of (a) and (b) be replaced with ‘and/or’; and

•  the words ‘for consumption’ in clause 4.2(a) be replaced with ‘to be consumed’.

[31] The SDA submit that any of the activities listed in the sentence satisfies the definition and replacing ‘and/or’ with a comma in the lead-in words of clause 4.2 creates ambiguity in a previously clear statement. They also submit that ‘and/or’ should also be placed at the end of clause 4.2(a) and (b). They further submit that the change from ‘to be consumed away from the point of sale’ to ‘for consumption away from the point of sale’ is of little or no benefit and that ‘to be consumed away from the point of sale’ is more easily understood. 19

[32] Ai Group do not oppose the retention of the relevant coverage clauses in the current award. 20

[33] The definition of the fast food industry is located at clause 3 of the current award and was recently considered by the Full Bench in the Proposed On Demand Delivery Services Award matter lodged by Menulog (the Menulog Full Bench). In their decision issued 28 January 2022 21, the Full Bench said:

“…It may be accepted that, read strictly literally, the definition of “fast food industry” in clause 3.1 of the Fast Food Award may encompass an employer that only takes orders for and delivers fast food without actually preparing it. That is a result of the disjunctive “or” used in the description of the industry in the chapeau to the definition as “…taking orders for and/or preparation and/or sale and/or delivery…”. However, this literal reading is inconsistent with the stated intention of the Full Bench of the Australian Industrial Relations Commission which made the Fast Food Award. In a decision issued on 19 December 2008, 16 the Full Bench set out the process by which it had arrived at the conclusion that a separate award for the fast food sector should be made:

“[279] A major proportion of the submissions on the retail industry exposure draft award concerned its scope and application. In our decision of 20 June 2008 we indicated that we proposed to consider all aspects of the retail industry, apart from real estate agencies and motor vehicle related retailing, as part of the priority stage.

[280] In response to that decision the Shop, Distributive and Allied Employees Association (the SDA) proposed a single award in the industry. The exposure draft adopted that approach while providing for variations for some parts of the industry in relation to classifications and hours. In our statement of 12 September 2008 we invited submissions on the inclusion of additional flexibilities to reflect current award and NAPSA provisions.

[281] In the subsequent consultations, employer groups continued to oppose the inclusion of fast food, beauty and hairdressing, meat retailing, and community pharmacies within the same award as applies to general retailing. In response to these submissions the SDA indicated that its approach, which was revised following our decision of 20 June 2008, was based on the Commission’s decision. Arising from consultations in relation to the Agriculture industry in Stage 2, employers who conduct stand alone nurseries also indicated their opposition to the inclusion of nurseries within a general retail award.

[282] The issue of the scope of the retail award raises important considerations concerning the objectives of award modernisation. The objective of reducing the number of awards applying in an industry carries with it the objective of rationalising disparate terms and conditions so that the resultant safety net is more uniform, consistent and fair. However, it is also evident that there are wide variations in terms and conditions in safety net awards and NAPSAs in the retail industry.

[283] The more awards with disparate provisions are aggregated the greater the extent of changes in the safety net. Changes may be able to be accommodated by a ‘swings and roundabouts’ approach, specific provisions relevant to part of the industry or transitional provisions. However, significant changes may also result in net disadvantage to employees and/or increased costs for employers. The publication of an exposure draft which sought to rationalise the terms and conditions across the various types of retail establishment provided a means whereby the impact of such an approach could be fully evaluated.

[284] We have considered these matters and the submissions of the parties and have decided to make separate awards for general retailing, fast food, hair and beauty, and community pharmacies. Further, we will exclude stand alone meat retailing and, at this stage, stand alone nurseries from the general retail award to enable those types of operations to be considered as part of the meat and agriculture industries respectively. The position regarding real estate agencies and motor vehicle related retailing will also be considered in subsequent stages.

[285] In reaching this decision we have placed significant reliance on the objective of not disadvantaging employees or leading to additional costs. We note that such an approach will not lead to additional awards applying to a particular employer or employee.”

…

Accordingly, we would prefer to read the chapeau to the industry definition in clause 3.1 as if it said: “fast food industry means the industry of taking orders for, preparing and selling (by direct provision to the customer and/or by delivery to the customer’s address) …”. If read this way, the “on demand delivery services industry” as defined in Menulog’s proposed award would not fall within the definition of “fast food industry” in clause 3.1 of the Fast Food Award and thus would not be covered by the Fast Food Award.” 22

[34] In light of the discussion set out in the Menulog decision set out above, we have determined to revert the PLED to the current award wording. The President has referred the coverage issue to the Menulog Full Bench.

Item 10 – clause 4.3—Coverage (on-hire)

[35] Item 10 concerns the drafting of the provisions relating to coverage of on-hire employees at clause 4.3(a) of the PLED. Provisions for coverage of on-hire employees and trainees contained at clauses 4.5 and 4.6 of the current award state:

‘4.5 This award covers any employer which supplies labour on an on-hire basis in the industry set out in clause 4.1 in respect of on-hire employees in classifications covered by this award, and those on-hire employees, while engaged in the performance of work for a business in that industry. This subclause operates subject to the exclusions from coverage in this award.

4.6 This award covers employers which provide group training services for trainees engaged in the industry and/or parts of industry set out in clause 4.1 and those trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.’

[36] Clause 4.3(a) of the PLED states:

‘4.3 This industry award also covers:

(a) on-hire employees working in the fast food industry (with a classification defined in clause 12.4) and the on-hire employers of those employees; and

(b) trainees employed by a group training employer and hosted by an employer covered by this award to work in the fast food industry (with a classification defined in clause 12.4) at a location where the employees mentioned in clause 4.1(b) also perform work and the group training employers of those trainees.’

[37] The SDA submit that the current award clauses 4.5 and 4.6 respectively should be retained in their entirety at clause 4.3 of the PLED because current award clauses 4.5 and 4.6 would be clearer than the PLED wording. 23

[38] Ai Group submit that clause 4.3 of the PLED potentially alters the coverage of the instrument, as it relates to on-hire arrangements, by removing the requirement that an employee be engaged in the performance of work for a business in the fast food industry. They submit that under the proposed provision the coverage of an employee and their employer would turn on whether the on-hire employee is working in the fast food industry. They also submit that the PLED neglects to provide that the instrument only covers a labour hire employer in respect of on-hire employees while the on-hire employee is engaged in the performance of relevant work in the industry. Ai Group seek to retain the wording in clause 4.5 of the current award. 24

[39] The re-drafting of provisions relating to on-hire and group training arrangements was discussed during the plain language re-drafting of the Pharmacy Industry Award 2010 25 (Pharmacy Award) and the wording in Fast Food PLED is based on the wording settled in those proceedings. However, we agree that the limitation of current award clause 4.5 should be reflected at clause 4.3 of the PLED, so that the instrument covers on-hire employees while they are engaged to perform relevant work for a business in the fast food industry and the on-hire employers of those employees. We have decided to amend clause 4.3 of the PLED to cover on-hire employees while working for a business in the fast food industry.

[40] We also note that in a decision issued in the plain language re-drafting proceedings of the Pharmacy Award 26 the words ‘with a classification’ were changed to ‘within a classification’. We will make that same change where the phrase occurs at clauses 4.1(b), 4.3(a) and 4.3(b). Clause 4.3(a) of the PLED will be amended as follows:

‘4.3 This industry award also covers:

(a) on-hire employees while working for a business in the fast food industry (within a classification defined in clause 12.4) and the on-hire employers of those employees; and’

[41] Item 10 is now resolved.

Items 11, 12 and a new item – clause 4.4—Coverage (exclusions)

[42] Items 11 and 12 relate to the award coverage exclusions listed at clause 4.4(d) and (e) of the PLED, respectively. Following the February 2021 conference, the SDA raised a new concern relating to the award coverage exclusion at clause 4.4(b) of the PLED.

[43] In the current award, award coverage exclusions are listed at clauses 4.1 (in part), 4.2, 4.3 and 4.4. The relevant exclusion clauses of the current award state:

‘4.1 …The award does not cover employers in the following industries:

•  the hospitality industry; or

•  the general retail industry.

4.2 The award does not cover an employee excluded from award coverage by the Act.

4.3 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

4.4 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.’

[44] During the plain language re-drafting process related material was placed together to make the clause easier to navigate and the coverage exclusions follow on from the coverage inclusions. The exclusion at current award clause 4.2 now appears at clause 4.4(a) of the PLED. Clause 4.4 of the PLED states:

‘4.4 However, this industry award does not cover any of the following:

(a) employees excluded from award coverage by the Act; or

NOTE: See section 143(7) of the Act.

(b) employees covered by a modern enterprise award or an enterprise instrument; or

(c) employees covered by a State reference public sector modern award or a State reference public sector transitional award; or

(d) employers of employees mentioned in clause 4.4(b) or 4.4(c); or

(e) employers covered by any of the following awards:

(i) the Hospitality Industry (General) Award 2020; or

(ii) the General Retail Industry Award 2020.’

(i) New item

[45] The new item relates to clause 4.4(b) of the PLED. The SDA submit that the exclusion of employees covered by an enterprise instrument at clause 4.4(b) should be amended to read as follows, to allow for enterprise agreements which incorporate part of the Award into its own provisions:

‘(b) employees covered by a modern enterprise award or an enterprise instrument, unless otherwise provided in that modern enterprise award or enterprise instrument; or’ 27

[46] Ai Group submit that the SDA’s proposal is misconceived and should not be adopted. They submit that clause 4.4(b) relates to modern enterprise awards and enterprise instruments, not enterprise agreements, as suggested by the SDA. 28

[47] We have decided not to amend clause 4.4(b), as the intention of clause 4.3 of the current award is reflected in the drafting of clause 4.4(b) of the PLED. The new item is now resolved.

(ii) Item 11

[48] Item 11 relates to clause 4.4(d) of the PLED. Ai Group submit that ‘excluding employers of employees mentioned in clauses 4.4(a)–(c)’ would likely have the effect of removing most employers from coverage of the award, by virtue of the fact that they employ at least some employees who are excluded from award coverage by the Act.

[49] Ai Group submit that the exclusion extends beyond the scope of clauses 4.2–4.4 of the current award and the clause should be amended to state that the industry award does not cover employers in relation to employees mentioned at clauses 4.4(a)–4.4(c), rather than employers of employees mentioned at clauses 4.4(a)–4.4(c):

‘(d) employers in relation to of employees mentioned in clauses 4.4(b) or 4.4(a)–4.4(c); or’ 29

[50] The SDA do not oppose Ai Group’s submissions and note that the objections are broadly consonant with their own position. 30

[51] The current award, at clauses 4.3 and 4.4, states that the award does not cover ‘…employees…or employers in relation to those employees’. The equivalent provisions appear at clauses 4.4(b) and 4.4(c) of the PLED, with the reference to employers appear at clause 4.4(d). We agree that the scope at clauses 4.3 and 4.4 of the current award should be reflected at clause 4.4(d) of the PLED and will amend clause 4.4(d) to avoid substantively changing the clause.

[52] We also note that Ai Group refer to ‘4.4(a)–4.4(c)’in their proposed variation whereas the PLED clause states ‘4.4(b) or 4.4(c)’. Clause 4.4(a) of the PLED is equivalent to clause 4.2 of the current award. Clause 4.2 of the current award does not make reference to employers; however, if the award does not cover employees excluded from award coverage by the Act, then it is reasonable that the award does not cover employers in relation to those employees. To clarify this exclusion, we determine to amend clause 4.4(d) of the PLED by adding clause 4.4(a) to the list. We will amend clause 4.4(d) of the PLED as follows:

‘(d) employers of in relation to employees mentioned in clauses 4.4(a), 4.4(b) or 4.4(c); or’

(iii) Item 12

[53] Item 12 relates to clause 4.4(e) of the PLED and the change from excluding employers in certain industries (clause 4.1 of the current award) to excluding employers covered by certain awards (clause 4.4(e) of the PLED).

[54] The relevant provision in the current award, clause 4.1, states:

‘4.1 …The award does not cover employers in the following industries:

•  the hospitality industry; or

•  the general retail industry.

[55] Clause 4.4(e) of the PLED states that this industry award does not cover:

‘(e) employers covered by any of the following awards:

(i) the Hospitality Industry (General) Award 2020; or

(ii) the General Retail Industry Award 2020.’

[56] ABI submits that the amendment at clause 4.4(e) is potentially confusing and that employers who operate under an enterprise agreement may not appreciate that whilst the relevant modern award no longer applies to their business, they are still covered by it as a matter of law. ABI suggest reverting to the current award wording. 31

[57] Ai Group does not consider that the concern raised by ABI warrants re-drafting of clause 4.4(e) of the PLED. 32 The SDA submit that the current award wording should be retained as the submissions of all parties highlight the issues raised by changing wording so fundamental to the application of the award with little to no benefit.33

[58] We note that employers excluded under the current award are those ‘in’ the named industries and employers excluded under the PLED are those ‘covered by’ the named awards. The change has not been made in the equivalent provision in the coverage clause of any other 2020 award that has been determined through the plain language re-drafting process.

[59] We note that ‘hospitality industry’ and ‘general retail industry’ are not defined terms in either the current award or the PLED. We consider that the meaning of those terms should be clarified in order to provide greater certainty to award users. We propose amending clause 4.4(e) of the PLED as follows:

‘4.4 However, this industry award does not cover any of the following:

…

(e) employers in the following industries: covered by any of the following awards:

(i) the hospitality industry as defined in the Hospitality Industry (General) Award 2020; or

(ii) the general retail industry as defined in the General Retail Industry Award 2020.’

[60] The new item and items 11 and 12 are now resolved.

Item 13 – clause 4.5—Coverage

[61] Item 13 relates to clause 4.5 of the PLED, coverage by more than one award, and a concern raised by Ai Group about a potential ambiguity arising from the drafting.  34 The SDA agreed with Ai Group’s submission. 35 A solution was proposed in the agenda published before the February 2021 conference.36 At the February 2021 conference the SDA sought the opportunity to make further submissions regarding the drafting of the coverage provisions, as a whole and the proposed resolution was set aside.37

[62] No further submissions were received that would impact item 13 or in relation to item 13 specifically. We note that the changes proposed revert to the wording at current award clause 4.7. We will adopt the solution set out in the agenda and amend clause 4.5 of the PLED as follows:

‘4.5 If an employer is covered by more than one award, an employee of the employer is covered by the award containing the classification that is most appropriate to the work performed by the employee and to the environment in which the employee it is normally performs the work performed.’

[63] Item 13 is now resolved.

Item 15 – clause 10.2—Part-time employees

[64] Item 15 relates to the SDA’s objection to the lack of an equivalent provision in the PLED to clause 12.7 of the current award. They submit that the current award not only provides for a minimum daily engagement at clause 12.2(e) but also for rostered shifts at clause 12.7. 38 Clauses 12.2(e) and 12.7 of the current award state:

‘12.2 At the time of first being employed, the employer and the part-time employee will agree, in writing, on a regular pattern of work, specifying at least:

…

(e) that the daily engagement is a minimum of 3 consecutive hours; and…

…

12.7 An employer is required to roster a part-time employee for a minimum of 3 consecutive hours on any shift.’

[65] The equivalent provisions at clauses 10.2 and 10.3(e) of the PLED state:

‘10.2 The minimum daily engagement for a part-time employee is 3 consecutive hours.

10.3 At the time of engaging a part-time employee, the employer and the employee must agree in writing on a particular pattern of work. That agreement must include at least all of the following:

…

(e) that the daily engagement is a minimum of 3 consecutive hours; and…’

[66] Ai Group submit that the current award does not contain substantive provisions requiring that the employees must be rostered or that a roster must be prepared so, to that extent, the reference to rostering in clause 12.7 of the current award is anomalous and confusing and the drafting of the PLED has appropriately addressed the anomaly by removing that reference. 39

[67] The SDA maintain that the minimum daily engagement of 3 hours is not only a minimum daily engagement but also a minimum rostered engagement. They submit that Ai Group’s opposition to an amendment at clause 10.2 of the PLED to include a reference to ‘minimum rostered engagement’, on the basis that the current award does not contain substantive provisions requiring employees to be rostered or requiring rosters to be prepared, does not reflect a plain reading of either the current award or the PLED.

[68] The SDA further submit that not including the term ‘on any shift’ in clause 10.2 of the PLED may have an inadvertent impact on employees working across different days and seek that clause 10.2 of the PLED be amended as follows:

‘10.2 The minimum daily rostered engagement for a part-time employee is 3 consecutive hours on any shift.’ 40

[69] Ai Group submit that the award does not require that an employer prepare a roster in relation to part-time employees or any other category of employees. They submit that clause 12.2 of the current award in no way requires the rostering of part-time employees. 41

[70] We note that rostering arrangements are contemplated within the current award, as full-time employees are rostered for an average of 38 hours per week in accordance with clause 25.4 and part-time employees are rostered for a minimum of 3 consecutive hours in accordance with clause 12.7.

[71] The part-time provisions in the current award were varied to provide flexibility in varying the agreed regular pattern of work in a decision dated 4 July 2019. 42 Clause 12.3 of the current award allows an employer and part-time employee to agree to vary the agreed regular pattern of work in relation to a particular rostered shift and clause 12.4 entitles a part-time employee to be paid overtime for work performed before or after their rostered hours and for hours worked in excess of their regular pattern of work, where there is no written record of an agreed variation to the particular rostered shift. The provisions are reflected in the PLED at clauses 10.5 and 10.6, respectively

[72] We agree with the proposition that the minimum rostered engagement should be reflected in the provision at 10.2 of the PLED and that the provision should be drafted with the same effect as clause 12.7 of the current award to avoid an inadvertent impact on employees working across different days. We will amend clause 10.2 of the PLED as follows to set out the minimum rostered arrangements for a part-time employee:

‘10.2 An employer must roster a part-time employee for a minimum of 3 consecutive hours on any shift. The minimum daily engagement for a part-time employee is 3 consecutive hours.’

[73] Item 15 is now resolved.

Item 17 – clause 10.3—Part-time employees

[74] Item 17 relates to the drafting of clause 10. 3 of the PLED, which provides the minimum terms of the written agreement made between the employer and part-time employee. The relevant provisions in the current award, clause 12.2, are:

‘12.2 At the time of first being employed, the employer and the part-time employee will agree, in writing, on a regular pattern of work, specifying at least:

…

(c) the actual starting and finishing times of each day’

[75] The equivalent terms at clause 10.3 of the PLED state:

‘10.3 At the time of engaging a part-time employee, the employer and the employee must agree in writing on a regular pattern of work. That agreement must include at least all of the following:

…

(c) the times at which the employee will start and finish work each day’

[76] The SDA raised two issues. First, the SDA object to the phrase ‘at the time of first being employed’ used in clause 12.2 of the current award, being replaced with the phrase ‘at the time of being engaged’ at clause 10.3 the PLED. They submit that the draft clause lacks clarity and that the current award wording should be retained. Second, the SDA submit that clause 10.3(c) should state ‘the actual times at which the employee will start and finish work each day’ in order to fully reflect the current award. 43

[77] Ai Group, in response, state that while they do not consider the proposed changes necessary, they do not oppose them. 44

[78] In relation to the first issue, the change is not necessary as the phrase ‘at the time of engaging’ is clear in its meaning. We do not propose to amend clause 10.3 of the PLED in the manner suggested by the SDA.

[79] In relation to the second issue, we acknowledge that the wording of the PLED is different to the current award term and will amend clause 10.3(c) of the PLED as follows:

‘(c) the actual times at which the employee will start and finish work each day’

[80] Item 17 is now resolved.

Item 18 – clause 10.8—Part-time employees

[81] Item 18 relates to the drafting of clause 10.8 of the PLED. The SDA submit that reference should be made at clause 10.8 to the payment of penalty rates for part-time employees, as follows:

‘10.8 An employer must pay a part-time employee in accordance with clause 15—Minimum rates and clause 21.1—Penalty rates for each ordinary hour worked.’ 45

[82] Ai Group submit that the proposed change is not necessary as are various other provisions that may also be relevant to the amount payable to part-time employees for ordinary hours of work, such as allowances, and referring to each of those provisions would render the provision unnecessarily complex. 46

[83] The SDA confirm that they only propose to insert a reference to penalty rates to clarify the amount payable and ensure the practical usability of the award. 47

[84] We agree that a reference to penalty rates would assist the reader and assist with the practical usability of the award and we note that clause 11.3 of the PLED includes a reference to penalty rates for casual employees. We will insert a note at the end of clause 10.8 of the PLED referring the reader to penalty rates, similar to the reference to penalty rates at clause 11.3 of the PLED. We will amend clause 10.8 as follows:

‘10.8 An employer must pay a part-time employee in accordance with clause 15—Minimum rates for each ordinary hour worked.

NOTE: Penalty rates applicable to part-time employees are set out in clause 21—Penalty rates.’

[85] Item 18 is now resolved.

Item 19 – clause 11.3—Casual employees

[86] Item 19 relates to the information contained in Note 2 of clause 11.3 of the PLED. The SDA suggest that, consistent with its submission at item 18, the content of Note 2 be appended to the end of clause 11.3 of the PLED. They also submit that clause 13.2 of the current award provides for an additional 25% of the ‘ordinary rate’, rather than the ‘minimum rate’, and without the inclusion of a reference to the penalty and overtime payments in clause 11.3 of the PLED, the substantive meaning of the provision could change. Ai Group submit in response that Note 2 is already placed at the end of clause 11.3. 48

[87] Clause 11.3 of the PLED states:

‘11.3 An employer must pay a casual employee for each ordinary hour worked:

(a) the minimum hourly rate in clause 15—Minimum rates for the classification in which they are employed; plus

(b) a loading of 25% of the minimum hourly rate.

NOTE 1: The casual loading is paid instead of entitlements from which casuals are excluded by the terms of this award and the NES. See sections 86 to 93 of the Act.

NOTE 2: Overtime and penalty rates applicable to casuals are set out in clauses 20—Overtime and 21—Penalty rates.’

[88] The plain language drafting guidelines set out that notes may be included in awards to provide factual information or to point the reader to the relevant provisions of the award, in this case, containing the overtime and penalty rates. 49 The overtime and penalty rates provisions each contain a note setting out the method of calculation of the overtime or penalty rate—the cumulative approach—to assist the reader.50 Consistent with drafting guidelines and the resolution of item 18, Note 2 is placed at the end of clause 11.3.

[89] In relation to the ‘minimum rate’ in a 4-yearly review of modern awards–Technical and drafting issues–Groups 1A and B [2015] FWCFB 4658 at [35]–[47] the Full Bench set out changes to terminology that would be adopted as an outcome of the Review. The term ‘minimum hourly rate’ would be used to describe the hourly rate of pay if an award did not contain an all-purpose allowance. If an award did contain an all-purpose allowance, the term ‘ordinary hourly rate’ would be used. The Fast Food Award does not contain any all-purpose allowances; therefore, the term ‘minimum hourly rate’ is used in the PLED.

[90] We do not propose to amend clause 11.3 of the PLED. Item 19 is now resolved.

Item 20 – clause 12.2—Classifications

[91] Item 20 relates to the omission of the current award phrase ‘as determined by the employer’ from the clause 12.2 of the PLED. Clause 12.2 of the PLED states:

‘12.2 The classification by the employer must be based on the skill level that the employee is required to exercise in order to carry out the principal functions of the employment.’

[92] The relevant provision at clause 16.2 of the current award states:

‘16.2 The classification by the employer must be according to the skill level or levels required to be exercised by the employee in order to carry out the principal functions of the employment as determined by the employer.’

[93] Ai Group submit that it is no longer clear how the ‘principal functions of the [employee’s] employment’ are to be determined and that, to make it clear that the employer is to assess what the principal functions of an employee’s employment are, the words ‘as determined by the employer’ should be reinserted at the end of the clause. 51

[94] ABI submit that to ensure it is clear that the employer must require the employee to exercise the skills necessary in order to be classified at a particular level clause 12.2 of the PLED should be amended as follows:

‘12.2 The classification by the employer must be based on the skill level that the employee is required by the employer to exercise in order to carry out the principal functions of the employment.’ 52

[95] The SDA support the PLED drafting and submit that the change aids clarity without changing the fundamental meaning of the term. They note that PLED clause 12.1 states that an employer must classify an employee in accordance with clause 12.4 and contend that it could be said that the current provision implies that the employer has an unfettered discretion in determining classifications. They submit that if the current award provision is retained, then a note stating that the test is based on the duties actually performed would assist. They make the same objection in reply to ABI’s submission. 53

[96] Ai Group further submit that an employee’s classification level is to be determined according to the skill level that an employee is required to exercise in order to carry out the principal functions of their employment, with those principal functions having been determined by their employer. They submit that clause 12.2 of the PLED amounts to a substantive change to the terms of the award. 54

[97] In reply, the SDA point to the wording of the equivalent provision in other plain language awards and reiterate that the PLED wording aids clarity without changing the fundamental meaning of the provision. 55

[98] The wording of the provision was considered during the plain language re-drafting proceedings of the Clerks—Private Sector Award 2010 (Clerks Award) and in that matter it was decided to amend the provision to clarify that the classification of an employee is based on the requirements of the employer. 56 Those requirements are necessarily based on the employer’s determination of the principal functions of the employee’s employment and the skill level that the employer requires the employee to exercise in order to carry out those functions. We have decided to amend clause 12.2 of the PLED to be in similar terms as clause 12.2 of the Clerks Award, as follows:

‘12.2 The classification by the employer must be based on the skill level that the employer requires the employee is required to exercise in order to carry out the principal functions of the employment.’

[99] Item 20 is now resolved.

Item 21, 22 and 25 – clause 12.4—Classifications

[100] Items 21, 22, and 25 can be dealt with together. The items, along with resolved items 23, 24 and 26, relate to the drafting of clause 12.4(a) of the PLED. A proposed resolution for each of items 23, 24 and 26 was set out in the agenda published before the February 2021 conference. 57 Each resolution was accepted at the conference and incorporated into the PLED.

[101] At the February 2021 conference the SDA sought the opportunity to make further submissions regarding the drafting of the classification provisions as a whole. 58 The resolutions for items 23, 24 and 26 were to be revisited depending on the outcome of items 21, 22 and 25. Item 25 had been resolved and the PLED had been updated to correct the typographical error; however, as the SDA sought the opportunity to make further submissions on the classification provisions, the proposed resolution has been set aside until the related items are determined.

[102] The Classification definition for a fast food employee level 1 in the current award is at clause B.1.1:

‘B.1.1 An employee engaged in the preparation, the receipt of orders, cooking, sale, serving or delivery of meals, snacks and/or beverages which are sold to the public primarily to take away or in food courts in shopping centres.’

[103] Clause 12.4(a) of the PLED states (with the confirmed resolutions for items 23, 24 and 26 tracked):

‘12.4 Classification definitions

(a) Fast food employee level 1 means an employee who is:

(i) engaged in taking orders for, preparing, serving, selling or delivering, food or meals, snacks and/or beverages that are sold to the public for consumption away from the point of sale or in a food court, in a shopping centre or retail complex; and

(ii) required to undertake duties as directed within the limits of their competence, skills and training, including incidental cleaning and the cleaning of toilets.’

[104] Item 21 concerns the SDA’s objection to changes to the classification definitions. They submit that the changes could create inadvertent ambiguity and that the current definition should be retained as it is settled, clear and concise. They submit that, for example, in clause 12.4(a)(i) the change from ‘receipt of orders’ to ‘taking orders for’ renders the classification definition ambiguous. They submit that ‘receipt of orders’ has a clear meaning; an employee receives the order from the customer, whereas ‘taking orders for’ can connote a more active role. 59

[105] Item 22 concerns the omission of ‘cooking’ from the list of activities. ABI, Ai Group and the SDA each note that ‘cooking’ is listed as an activity in clause B.1.1 of the current award but has been omitted from clause 12.4(a)(i) of the PLED. Ai Group submit that, given that cooking is a significant common activity undertaken by employees covered by the Award, it should be included to make clear that such employees may be classified at level 1. 60

[106] Item 25 relates to clause 12.4(a)(i) and the omission of the word ‘primarily’ after the word ‘public’ in clause 12.4(a)(i) of the PLED. 61 The omission was a typographical error.

[107] The classification levels in the current award align closely with the definition of fast food industry which has been discussed above. The President has referred the classification issues (items 21, 22, 23, 24, 25 and 26) to the Menulog Full Bench to be determined with the industry definition issue. For the finalisation of the PLED, we will revert to the current award clause 12.4 wording.

Item 28 – clause 13—Ordinary hours of work and rostering

[108] Item 28 relates to the inclusion of a provision setting out the ordinary hours for casual employees at clause 13 of the PLED.

[109] Ai Group note that clause 13.1 is expressly confined in its application to full-time employees and submit that there is no provision of the PLED that makes clear that a casual employee cannot work more than 38 ordinary hours each week. They submit that this could have implications for the way in which superannuation entitlements are calculated and it may give rise to the issue of whether s.147 of the Fair Work Act 2009 (FW Act) has been satisfied. 62 The SDA support the Ai Group’s proposal.63

[110] At present, the only reference in the PLED to the number of ordinary hours a casual employee can work is in the overtime provisions at clause 20.4(a). We will amend the PLED to insert a new provision in clause 11—Casual employees, at clause 11.3, setting out the maximum ordinary weekly hours for a casual employee and a new provision in clause 13, at clause 13.4 with a reference to new clause 11.3. Subsequent clauses will be renumbered accordingly. The new provisions at clauses 11.3 and 13.4 of the PLED, will read as follows:

‘11.3 The ordinary hours of work for a casual employee:

(a) may be no more than 38 ordinary hours per week or

(b) where the employee works in accordance with a roster, may be no more than 38 ordinary hours per week averaged over the course of the roster cycle.

…

13.4 The ordinary hours of work for a casual employee are set out in clause 11—Casual employees.’

[111] Item 28 is now resolved.

Item 30 – clause 14.4—Breaks

[112] Item 30 relates to a concern raised by Ai Group about the drafting of clause 14.4 of the PLED. The equivalent provision in the current award, clause 27.1(b), states:

‘(b) The timing of the taking of a rest break or meal break is intended to provide a meaningful break for the employee during work hours.’

[113] Clause 14.4 of the PLED states:

‘14.4 When rostering rest and meal breaks, the employer must seek to ensure that the employee has meaningful breaks during work hours’

[114] Ai Group submit that the proposed clause creates a new obligation on employers, that they must seek to ensure that employees have meaningful breaks during working hours. They submit that clause 14.4 of the PLED is substantively different from the current award and should either be deleted or replaced with the extant clause 27.1(b). In further submission, they contend that clause 27.1 of the current award ‘prescribes what breaks will be given and, to some extent, when they must be taken. They submit that an employer can direct an employee to take their breaks at specific times, subject to their obligations under workplace health and safety laws, which necessarily require that consideration be given to ensuring that employee fatigue is being managed. They submit that there is no additional award-derived obligation on employers to give breaks in a way that ‘ensures that the employee has meaningful breaks’. 64

[115] The SDA note Ai Group’s objection to the word ‘must’ in clause 14.4 of the PLED and their proposal to retain the wording of the current award clause 27.1(b). The SDA oppose the proposal, submitting that the wording of clause 14.4 of the PLED clarifies the provision without imposing any additional requirements, because employers have always had to provide breaks in a way which was meaningful to the employees. They further submit that Ai Group’s characterisation of the PLED requirement, that breaks be given meaningfully, as a ‘new substantive requirement’ should be rejected outright because, amongst other reasons, although it is unlikely that the provision as drafted will end perverse work practices, they at least clarify that a nominal break does not satisfy the requirements of the Award. 65

[116] We agree with the Ai Group submission that clause 27.1 of the current award prescribes what breaks will be given and, to an extent, when they must be taken. That information is contained at clauses 14.1 and 14.5 of the PLED. We agree that changing the wording of cause 14.4 of the PLED is outside the scope of the plain language process. We will revert the current award wording. Item 30 is now resolved.

Items 31 and 33 – clause 15—Minimum rates

[117] Items 31 and 33 can be dealt with together. They relate to the use of the term ‘adult rate’ at clauses 15.1 (Adult rates) and 15.2 (Junior rates) of the PLED. The SDA object to the introduction of the term ‘adult rates’ as well as objecting to the definition of the ‘adult employee’ at clause 2—Definitions. They submit that the term ‘ordinary rates’ is sufficient and does not lead to the ambiguity nor the contradiction with the wider legal understanding of the term ‘adult’. 66

[118] Ai Group does not consider that the reference to ‘adult’ rates requires amendment. 67

[119] At [12]–[16] above we dealt with item 2, the definition of ‘adult employee’. The term was introduced in the PLED because the term ‘adult’ has an ordinary meaning different to the use in the award. An adult employee, an employee aged 21 and over, is paid the adult rate. A junior employee, an employee aged under 21, is paid a percentage of the adult rate.

[120] The terms ‘adult employee’ and ‘adult wage’ were introduced at clauses 16.1 and 16.2 in the Fast Food Award exposure draft published on 16 November 2016. The term ‘adult rate’ was introduced as a heading at clause 15.1 of the PLED to assist the reader and to align with common terminology. The term ‘adult rate was added to column heading in Table 4 to assist the reader. The term ‘ordinary rates’ is not used in either the current award or the PLED and introducing the term would lead to ambiguity. We do not propose to amend or delete the reference to ‘adult rate’ in either clause 15.1 or 15.2 of the PLED. To assist the reader further, we will add a row to Table 4 in clause 15.2 to clarify that an employee aged 21 is paid 100% of the adult rate and, therefore, is an adult employee. Items 31 and 33 are now resolved.

Item 37 – clause 17.4—Meal allowance

[121] Item 37 relates to the SDA’s objection to the drafting of the meal allowance provisions at clause 17.4 of the PLED. They submit that the proposed clause creates an ambiguity and suggest that the provision at clause 19.1 of the current award provides greater clarity and should be retained. 68 Ai Group do not oppose the SDA’s proposal.69

[122] Clause 19.1 of the current award states:

‘19.1 Meal allowance

(a) An employee required to work more than one hour of overtime after the employee’s ordinary time of ending work, without being given 24 hours’ notice, will be either provided with a meal or paid a meal allowance of $13.73. Where such overtime work exceeds four hours a further meal allowance of $12.40 will be paid.

(b) No meal allowance will be payable where an employee could reasonably return home for a meal within the period allowed.’

[123] Clause 17.4 of the PLED states:

‘17.4 Meal allowance

(a) An employer must either pay an employee a meal allowance of $13.32 or supply the employee with a meal if all of the following apply:

(i) the employee is required to work overtime of more than one hour on any day after the time at which the employee ordinarily finishes work for the day; and

(ii) the employee was not given at least 24 hours’ notice of that overtime requirement; and

(iii) the employee cannot reasonably return home for a meal in their meal break.

(b) If the overtime mentioned in clause 17.4(a) is more than 4 hours, then the employer must pay the employee a further meal allowance of $12.03.’

[124] We note that the SDA do not articulate the ambiguity they submit is created by the proposed clause. The proposed clause is drafted in line with plain language drafting guidelines and the conditions for payment of a meal allowance are clearly set out. We do not propose to revert to the current award clause. Item 37 is now resolved.

Item 38 – clause 17.5—Special clothing allowance

[125] Item 38 relates to the definition of ‘special clothing’ at clause 17.5(a) of the PLED:

‘(a) If an employer requires an employee to wear any article of clothing, such as a uniform, dress, protective or other clothing, (special clothing), then the employer must:…’

[126] The SDA submit that the term ‘special clothing’ should be inserted in the definition so that it reads:

‘(a) If an employer requires an employee to wear any article of clothing, such as a uniform, dress, protective, special or other clothing, then the employer must:’ 70

[127] Ai Group do not oppose the SDA’s proposal. 71

[128] Clause 17.5 of the PLED is drafted to define ‘special clothing’. We are not persuaded that adding ‘special’ to the list of items in the definition would assist. We note that the wording in the current award is the same as that in the Pharmacy Award 2010 version. The definition of the term at clause 19.5 of the current Pharmacy Award is more succinct. We have decided to amend clause 17.5 of the PLED to include the definition of ‘special clothing’ appearing in the Pharmacy Award, as follows:

‘17.5 Special clothing allowance

If an employer requires an employee to wear any article of special clothing, such as a uniform, dress, or protective or other clothing, (special clothing), then the employer must:’

[129] Item 38 is now resolved.

Item 39 – clause 17.6(a)(ii)—Travelling time reimbursement

[130] Item 39 relates to the provisions for reimbursement of travelling time set out in clause 17.6 of the PLED and the proposed drafting at 17.6(a)(ii). The relevant provision in the current award states:

‘19.4 Travelling time reimbursement

(a) An employee who on any day is required to work at a place away from their usual place of employment, for all time reasonably spent in reaching and returning from such place (in excess of the time normally spent in travelling from their home to their usual place of employment and returning), will be paid travelling time and also any fares reasonably incurred in excess of those normally incurred in travelling between their home and their usual place of employment.’

[131] Clause 17.6(a) of the PLED states:

‘17.6 Travelling time reimbursement

(a) If an employer requires an employee to work on any day at a place other than their usual place of work, then the employer must:

(i) pay the employee for any extra time reasonably spent travelling to and from work in excess of their normal travel times, as calculated under clause 17.6(b) at the rates set out in clause 17.6(c); and

(ii) reimburse the employee for any additional costs incurred in travelling to and from the other place of work.’

[132] Ai Group submit that under the current award an employee is entitled, in the relevant circumstances, to be paid for any fares reasonably incurred in excess of those normally incurred in travelling between their home and their usual place of employment. They submit that clause 17.6(a)(ii) of the PLED does not properly reflect clause 19.4(a) of the current award in three important aspects:

(1) It requires payment for any additional costs which potentially incorporates costs other than fares.

(2) It requires payment for any additional costs, regardless of whether they were reasonably incurred.

(3) Though the provision refers to additional costs, it does not make clear what those costs would be additional to.

[133] Ai Group submit that, for these reasons, the proposed clause should be replaced with the following:

‘(ii) reimburse the employee for any fares reasonably incurred in travelling to and from the employee’s residence and the other place of work that are in excess of the fares normally incurred in travelling between the employee’s residence and their usual place of work.’ 72

[134] The SDA do not support Ai Group’s objection to the drafting of clause 17.6(a)(ii) of the PLED and note that the words are included in other plain language awards. 73

[135] We agree that using the term ‘additional costs incurred’ does not properly reflect the terms of the current award and may cause ambiguity. We will amend clause 17.6(a)(ii) of the PLED to provide clarity to the provision, as follows:

‘17.6 Travelling time reimbursement

(a) If an employer requires an employee to work on any day at a place other than their usual place of work, then the employer must:

(i) pay the employee for any extra time reasonably spent travelling to and from work in excess of their normal travel times, as calculated under clause 17.6(b) at the rates set out in clause 17.6(c); and

(ii) reimburse the employee for any additional costs fares reasonably incurred in excess of those normally incurred travelling to and from the other place of work. employee’s residence and their usual place of work.’

[136] Item 39 is now resolved.

Item 40 – clause 17.7(b)—Transport of employee reimbursement

[137] Item 40 relates to Ai Group’s concern about the use of the term ‘commercial passenger vehicle’ at clause 17.7(b) of the PLED. The relevant provision in the current award states:

‘19.7 Transport of employee reimbursement

(a) Where an employee commences and/or ceases work after 10.00 pm on any day or prior to 7.00 am on any day and the employee's regular means of transport is not available and the employee is unable to arrange their own alternative transport, the employer will reimburse the employee for the cost of a taxi fare from the place of employment to the employee's usual place of residence. This will not apply if the employer provides or arranges proper transportation to and/or from the employee’s usual place of residence, at no cost to the employee.’

[138] Clause 17.7(b) of the PLED states:

‘(b) The employer must reimburse the employee, as applicable, for any cost they reasonably incur in taking a commercial passenger vehicle:

(i) from their usual place of residence to their place of work; or

(ii) from their place of work to their usual place of residence.’

[139] Ai Group submit that clause 17.7(b) of the PLED is potentially much broader than the current award and the change would amount to a substantive change. They submit that the PLED provision requires an employer to reimburse an employee for any cost reasonably incurred in taking a ‘commercial passenger vehicle’, whereas in clause 19.7(a) of the current award an employer’s obligation is limited to the cost of a taxi fare. They submit that taxi fares are regulated by state and territory governments and it is not appropriate that the minimum safety net require an employer to reimburse an employee for costs incurred in relation to other modes of transport, that are not regulated in that way. They suggest that the provision should be re-drafted to enable an employer and employee to agree that the employee will be transported by a mode of transport other than a taxi; however, the employer would be liable to reimburse the employee for expenses incurred only if that is agreed by the employer, as follows:

‘(b) The employer must reimburse the employee, as applicable, for any cost they reasonably incur in either taking a taxi, or any alternate commercial passenger vehicle that the employer agrees may be used, to travel:’ 74

[140] The SDA oppose Ai Group’s submissions and proposed variation. They note that the issue of ‘commercial passenger vehicle’ was dealt with comprehensively by the Full Bench in the plain language re-drafting proceedings of the Pharmacy Award and the settled wording was adopted in other awards. They submit that Ai Group’s proposed wording adds unnecessary complexity and subjectivity and that such a change may also give rise to a misunderstanding that the employer must agree for the employee to take a taxi. They submit that their proposal to insert the words ‘equivalent to a taxi’ at the end of clause 17.7(b) will mitigate Ai Group’s concerns about ‘premium services’. 75

[141] As noted by the SDA, the use of the phrase ‘commercial passenger vehicle’ was dealt with during the plain language re-drafting proceedings of the Pharmacy Award. In a decision dated 21 March 2017 76 (March 2017 decision) we confirmed the provisional view had expressed in the decision dated 20 January 2017:77

‘[202] We note that clause 18.6 is confined to the reimbursement of the cost of taking a taxi. Given the emergence of other transport operators, such as Uber, our provisional view is that it is appropriate to extend the operation of the clause.

[203] The words ‘commercial passenger vehicle’ have been used instead of naming a specific operator such as Uber in order to ensure that the provision applies to any future services that become available. The word ‘reasonably’ has been inserted to ensure that employees do not unreasonably seek reimbursement for the cost of more expensive commercial passenger vehicle (such as Uber Black) when a more reasonably priced option is available.’

[142] In addition to the plain language Pharmacy Award, a clause in similar terms, using the words ‘commercial passenger vehicle’ and ‘reasonably incurred’ has been included in the plain language Clerks Award and General Retail Award.

[143] We do not propose to amend clause 17.7(b) of the PLED in the terms sought as the protections provided by the March 2017 decision have been drafted into this provision. Item 40 is now resolved.

Item 45 – clause 18.3(d)—Accident pay—entitlement to payment

[144] Item 45 relates to the drafting of the provisions relating to the entitlement to payment of accident pay at clause 18.3(d) of the PLED. The relevant provision, clause 20.3(b), in the current award states:

‘(b) The entitlement to accident pay continues on termination of an employee’s employment where such termination:

(i) is by the employer other than for reasons of the employee’s serious and/or wilful misconduct; or

(ii) arises from a declaration of bankruptcy or liquidation of the employer, in which case the employee’s entitlement will be referred to the Fair Work Commission to determine.

[145] Clause 18.3(d) of the PLED provides:

‘(d) The entitlement of an employee to accident pay continues on termination of the employee’s employment where the termination is:

(i) by the employer other than for reasons of the employee’s serious or wilful misconduct; or

(ii) because of the employer’s bankruptcy or the liquidation of the employer’s business.

NOTE: The Fair Work Commission may determine the entitlement of an employee to accident pay in the circumstances mentioned in clause 18.3(d)(ii).’

[146] Ai Group note that, under clause 20.3(b)(ii) of the current award, if an employee who is receiving accident pay is terminated from their employment because of the employer’s declaration of bankruptcy or liquidation of the employer’s business, then the employee’s entitlement to accident pay will be referred to the Fair Work Commission for determination.

[147] Ai Group submit that the position is substantively different under clause 18.3(d) of the PLED because the PLED does not state that the employee’s entitlement to accident pay must be referred to the Fair Work Commission to determine. Instead, they submit, the note at the end of the clause states that the Fair Work Commission may determine the entitlement of an employee to accident pay if the employee is terminated because of the employer’s bankruptcy or the liquidation of the employer’s business. They submit that clause 18.3(d)(ii) of the PLED, including the note, should be deleted and replaced with the wording at clause 20.3(b)(ii) of the current award. 78

[148] In reply, the SDA submit that they do not support Ai Group’s submission. They submit that the proposed wording merely clarifies the entitlement to accident pay in the case of bankruptcy and/or liquidation and does not preclude the employer (or liquidator) from seeking a determination from the Fair Work Commission. 79

[149] We agree that clause 18.3(d) of the PLED is different to clause 20.3(b) of the current award and will amend clause 18.3(d) of the PLED so the employee’s entitlement to accident pay must be referred to the Commission for determination in the circumstances mentioned in clause 18.3(d)(ii). The proposed amendment is set out below:

‘(d) The entitlement of an employee to accident pay continues on termination of the employee’s employment where the termination is:

(i) by the employer other than for reasons of the employee’s serious or wilful misconduct; or

(ii) because of the employer’s bankruptcy or the liquidation of the employer’s business; in which case, the employee’s entitlement to accident pay will be referred to the Fair Work Commission for determination.’

NOTE: The Fair Work Commission may determine the entitlement of an employee to accident pay in the circumstances mentioned in clause 18.3(d)(ii).’

[150] Item 45 is now resolved.

Items 49, 50 and 51 – clause 22.2—Additional paid annual leave for certain shiftworkers

[151] Items 49, 50 and 51 concern the drafting of clause 22.2 of the PLED, the provision relating to additional paid annual leave for certain shiftworkers. The equivalent provision in the current award, clause 28.2, states:

‘28.2 Definition of shiftworker

For the purpose of the additional week of annual leave provided for in the NES, a shiftworker is a seven day shiftworker who is regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for seven days a week.’

[152] Clause 22.2 of the PLED published on 28 October 2020 was drafted as follows:

‘22.2 Additional paid annual leave for certain shiftworkers

A shiftworker who is regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for 7 days a week is entitled to an additional week of paid leave under the NES. See section 87 of the Act.’

[153] In summary, the issues are:

•  Item 49—omission of the reference to ‘seven day’ in the definition of shiftworker;

•  Item 50—deletion of clause 22.2; and

•  Item 51—references to ‘continuous’ and regularly’.

Item 50

[154] It is convenient to deal with item 50 first. Item 50 relates to Ai Group’s contention that clause 22.2 of the PLED should be deleted in its entirety because the award does not contemplate the performance of shiftwork and, therefore, the clause has no work to do. 80

[155] The SDA submits that, despite the award’s silence regarding shiftwork, employees may be rostered in such a way that qualifies them as shiftworkers. The SDA also state that many fast-food establishments operate on a 24 hours a day, 7 days a week model, and this clearly facilitates shiftwork. 81

[156] At [177] to [187] below, we set out the history of the references to shiftwork in the current award and conclude that the award does not include any substantive provisions for shiftwork. Consistent with this conclusion, it is our provisional view that clause 22.2 should be deleted from the PLED. This resolves items 49, 50 and 51.

Items 52, 53, 54 and a new item – clause 22.3—Annual leave loading

[157] Items 52, 53, 54 and the new item relate to concerns about the drafting of clause 22.2 of the PLED, the provision for a loading to be paid to employees during a period of annual leave. 82

[158] It is necessary to set out some relevant background before turning to the issues in contention.

[159] During the review of Group 3 awards, Ai Group made submissions regarding unresolved concerns. One concern was the manner in which premiums are expressed in exposure drafts and the impact on certain entitlements. Ai Group submitted:

‘4. Our second concern relates to the manner in which premiums are expressed in exposure drafts. Numerous exposure drafts state, for example, that a shift worker is to be paid 130% of the relevant rate, rather than a 30% loading. This has implications for the calculation of other award entitlements which still refer to loadings (e.g. annual leave payments).’ 83

[160] In a decision dated 30 October 2017,  84 the Group 3 Full Bench expressed the view that there may be issues with the interaction between the penalty rates clause and annual leave loading and that some exposure drafts may be ambiguous because the annual leave loading clause isolates the loading component of the shiftwork (or penalty rate) provision and compares it to annual leave loading. As certain re-drafted penalty rates clauses no longer identify the loading component of the shiftwork (or other) penalty separately, the annual leave loading clause is no longer comparing like with like.

[161] The Fast Food Industry Award 2010 was identified at Attachment B of that decision as an exposure draft in which there may be an issue with the interaction between the annual leave loading and the penalty rates provisions. The issue of ambiguity and terminology in annual leave loading clauses was then referred to the Plain Language Full Bench.

[162] In a statement dated 21 March 2018 85 it was confirmed that the Plain Language Full Bench would deal with the issue previously raised by Ai Group, along with similar queries received form the Fair Work Ombudsman about calculating annual leave loading.

[163] In a statement dated 13 December 2019 86 relating to 11 awards in Tranche 1 of the final stage proceedings, it was generally accepted that an award-by-award approach would be appropriate as there was no consensus as to how the ambiguity was to be addressed.

[164] We now turn to the issues in dispute.

[165] The relevant provision in the current award, clause 28.3, states:

‘28.3 Annual leave loading

(a) During a period of annual leave an employee will receive a loading calculated on the wage rate prescribed in clause 17—Minimum weekly wages. Annual leave loading is payable on leave accrued.

(b) The loading will be as follows:

(i) Day work

Employees who would have worked on day work only had they not been on leave—17.5% or the relevant weekend penalty rates, whichever is the greater but not both.

(ii) Shiftwork

Employees who would have worked on shiftwork had they not been on leave—a loading of 17.5% or the shift loading (including relevant weekend penalty rates), whichever is the greater but not both.’

[166] Clause 22.3 of the PLED states:

‘22.3 Annual leave loading

(a) An employee is entitled to an additional payment for accrued annual leave, calculated on the minimum hourly rate specified in clause 15—Minimum rates for the classification in which they are employed.

(b) The additional payment for the employee’s ordinary hours of work when taking paid annual leave is as follows:

(i) Dayworkers

An employee who would have worked on day work only had they not been on leave must be paid the greater of either:

•  the minimum hourly rate plus a loading of 17.5% of the minimum hourly rate; or

•  the relevant weekend penalty rate specified in clause 21.1.

(ii) Shiftworkers

An employee who would have worked on shift work had they not been on leave must be paid the greater of either:

•  the minimum hourly rate plus a loading of 17.5% of the minimum hourly rate; or

•  the relevant penalty rate specified in clause 21.1, including relevant weekend penalty rates.

NOTE: Section 90(2) of the Act contains provisions relating to an employee’s entitlement to payment for any untaken paid annual leave when employment ends.’

[167] Ai Group and the SDA raised concerns with the drafting of the proposed clause and at the February 2021 conference the parties sought the opportunity to provide further submissions. As part of their further submissions, Ai Group raised an additional drafting concern.

[168] The concerns are:

•  Item 52—the term ‘additional payment’—retaining the term ‘loading’ would provide greater clarity and is preferable to ‘additional payment’, or retaining the current award clause in total would be preferable to the proposed wording; 87

•  Item 53—the operation of the ‘additional payment’—the effect of the drafting is that the amounts prescribed by clauses 22.3(b)(i) and (ii) are paid in addition to the employee’s base rate of pay and the employee would receive a loading of 217.5%, 225% or 250% of the minimum hourly rate of pay plus the employee’s base rate of pay; 88

•  Item 54—shiftwork—it may be appropriate to delete PLED clause 22.3(b)(ii), given the absence of provisions contemplating shiftwork in the current award; 89

•  New item—period of leave—the PLED currently appears to require an hour-by-hour comparison to calculate the annual leave loading and should be amended to make clear that the amounts referenced at clauses 22.3(b)(i) and (ii) are to be calculated by reference to the entire period of leave taken by an employee, consistent with the current award. 90

Items 52 and 53–Additional payment

[169] In their initial submission the SDA raised a concern about the use of the term ‘additional payment’. They submit that the retention of the term ‘loading’ is preferable to using the term ‘additional payment’ as it provides greater clarity at clauses 22.3(a) and (b) respectively of the PLED. 91

[170] Ai Group submits that clauses 22.3(a) and (b) of the PLED both state that an employee is entitled to an additional payment for accrued annual leave and clauses 22.3(b)(i) and (ii) set out the additional amounts payable. They submit that it is not abundantly clear what the amounts are to be paid in addition to and, when read alongside the NES, the effect of the proposed drafting would be to require the payment of the prescribed amounts in addition to the employee’s base rate of pay prescribed by the NES. They state that, read this way, under proposed clause 22.3(b)(i), for example, an employee whose base rate of pay equates to the minimum rates prescribed by the PLED would be entitled to 217.5%, 225% or 250% of the minimum hourly rate of pay and a similar outcome would flow from proposed clause 22.3(b)(ii). They state that, whilst that current award clause 28.3(b) is somewhat unclear and potentially anomalous, the current award clause is not intended to operate in the manner reflected at clause 22.3(b) of the PLED.

[171] The SDA, in response to Ai Group’s initial submission regarding the operation of the ‘additional payment’, submit that the current wording at clause 28.3(b) of the current award is sufficiently clear, in particular, the use of ‘loading’ rather than ‘additional payment’. They submit further that they favour the retention of the current PLED wording and suggest that retaining the wording ‘loading’ rather than ‘additional payment’ would go some way to ameliorating the concerns of Ai Group.  92

[172] We agree that renaming the clause from ‘annual leave loading’ to ‘annual leave payment’ may give rise to an ambiguity or uncertainty. We have decided to revert to the existing terminology of ‘annual leave loading’ to maintain consistency with the Act.

[173] We also agree that the current drafting creates ambiguity in the calculation of the relevant loading which needs to be addressed. Both the current award and the PLED refer to ‘relevant weekend penalty rates’ and because the penalty rates clause in the PLED no longer identify the loading component of the penalty rate separately, the annual leave loading clause is no longer comparing like with like.

[174] The current award wording at clause 28.3(b)(i), for example, provides that the annual leave loading is ‘17.5% or the relevant weekend penalty rates, whichever is the greater but not both.’ The relevant weekend penalty rate in clause 21 of the PLED is either 125% or 150% of the minimum hourly rate. If the current award wording replaced the wording at clause 22.3(b)(i) of the PLED, the loading to be added to the employee’s base rate of pay would be calculated as the greater of either 17.5% or the relevant weekend penalty rate of 125% or 150%.

[175] Further, the additional payment is calculated in accordance with cl. 22.3(b) and added to the employee’s base rate of pay. We agree with Ai Group that, assuming the employee’s base rate of pay equates to the minimum hourly rate, an employee may be entitled to 217.5% (the base rate of pay plus the minimum hourly rate plus 17.5% of the minimum hourly rate), 225% or 250% (the base rate of pay plus the relevant weekend penalty rate).

[176] We deal with our proposed redrafting of the PLED clause to address this issue below.

Item 54 Shiftwork

[177] Ai Group submits that given the absence of provisions contemplating shiftwork or prescribing shift loadings, it may be appropriate to delete clause 22.3(b)(ii) of the PLED. 93

[178] The SDA opposes the deletion of clause 22.3(b)(ii) of the PLED, submitting that, despite the award’s silence regarding shiftwork provisions, employees may be rostered to qualify them as shiftworkers. 94

[179] We note that the current award does include some provisions relating to shiftwork, including a definition of ‘shiftworker’ for the purposes of annual leave at cl. 28.2:

28.2 Definition of shiftworker

For the purpose of the additional week of annual leave provided for in the NES, a shiftworker is a seven day shiftworker who is regularly rostered to work on Sundays and public holidays in a business in which shifts are continuously rostered 24 hours a day for seven days a week.

[180] However, the current award does not include any shift loadings or other provisions regulating shift work. The history of the Fast Food Award does not provide a clear answer as to why the award contains a definition of shiftwork in the absence of any other shiftwork provisions.

[181] During Award Modernisation, the AIRC initially proposed that the fast food industry would be included in the coverage of the General Retail Award. However, in a decision on 19 December 2008, 95 the AIRC decided to make a separate award for the fast food industry and noted:

[283] The more awards with disparate provisions are aggregated the greater the extent of changes in the safety net. Changes may be able to be accommodated by a “swings and roundabouts” approach, specific provisions relevant to part of the industry or transitional provisions. However, significant changes may also result in net disadvantage to employees and/or increased costs for employers. The publication of an exposure draft which sought to rationalise the terms and conditions across the various types of retail establishment provided a means whereby the impact of such an approach could be fully evaluated.

[284] We have considered these matters and the submissions of the parties and have decided to make separate awards for general retailing, fast food, hair and beauty, and community pharmacies. Further, we will exclude stand alone meat retailing and, at this stage, stand alone nurseries from the general retail award to enable those types of operations to be considered as part of the meat and agriculture industries respectively. The position regarding real estate agencies and motor vehicle related retailing will also be considered in subsequent stages.

[285] In reaching this decision we have placed significant reliance on the objective of not disadvantaging employees or leading to additional costs. We note that such an approach will not lead to additional awards applying to a particular employer or employee.

[286] The contents of the four awards we publish with this decision are derived from the existing awards and NAPSAs applying to the different sectors. Although the scope of the awards is obviously reduced, this did not eliminate the variations in terms and conditions within each part of the industry. We have generally followed the main federal industry awards where possible and had regard to all other applicable instruments. In this regard we note in particular the significant differences in awards and NAPSAs applying to the fast food and pharmacy parts of the industry.

[182] When the Fast Food Award 2010 was first made by the AIRC on 19 December 2008 96 a small number of clauses included clause titles which excluded shift work, for example:

26.2 Overtime and penalty rates

Hours worked in excess of the ordinary number of hours of work prescribed in clause 25.2 are to be paid at time and a half for the first two hours and double time thereafter, except on a Sunday which will be paid at the rate of double time.

(a) Evening work Monday to Friday (excluding shiftwork)

A loading of 10% will apply for ordinary hours of work within the span of hours between 6.00 pm and midnight, and for casual employees an additional 25% of the rate on top of the casual rate.

(b) Saturday work (excluding shiftwork)

A loading of 25% will apply for ordinary hours of work within the span of hours on a Saturday, and for casual employees an additional 25% on top of the casual rate.

(c) Sunday work

A 75% loading will apply for all hours of work on a Sunday for full-time, part time and casual employees.

[183] The award also included the following cl.19.7(c):

(c) Provided further that this clause will not apply to employees engaged under the provisions of shiftwork.

[184] Clause 19.7(c) and the headings in clause 26.2 were removed from the Award following a decision on 30 December 2013 97. The decision notes that:

[10] Following those discussions Ms Daniela DeMartino, National Industrial Officer of the Shop, Distributive and Allied Employees’ Association (SDA) wrote providing draft orders for the variations to clauses 26.1(b) and (c) and 26.5 of the award. On 18 September 2013 the parties further agreed to changes to the award - deletion of clause 19.7(c) and deletion of the words “(except for shiftworkers)” in clause 27.1(e). 98

[185] No further reasons for the removal of these provisions are given in the decision.

[186] In 2009, the National Retail Association and Ai Group made a claim to insert a new night shift work clause. This claim was rejected by a Full Bench in 2010, 99 who noted that:

[27] The NRA and Ai Group propose the insertion of a new clause providing for work on night shift. We do not believe that a case has been made out for such a provision.

[187] In circumstances where the Fast Food Award does not currently provide any substantive shiftwork provisions, we consider that retaining cl.22.3(b)(ii) may lead to confusion and uncertainty and we agree with the Ai Group submission the clause should be deleted.

New item– period of leave

[188] After the February 2021 conference Ai Group made further submissions and raised a new issue concerning the ‘period of leave’. They contend that clause 22.3 of the PLED deviates from the current award because it appears to require that the comparative exercise required by clause 22.3(b)(i) and 22.3(b)(ii) is undertaken on an hourly basis rather than by reference to the entire period of leave.

[189] Ai Group submits that clause 28.3 of the current award requires that an employee must be paid ‘a loading’, one additional amount, in relation to a ‘period of leave’. In clause 28.3(b)(i), if an employee would have worked on day work had they not been on leave ‘the loading’ payable for the ‘period of leave’ will equate to either 17.5% of the minimum weekly wage or the relevant weekend penalty, whichever is the higher but not both, with the same applying for clause 28.3(b)(ii) (noting that the current award does not prescribe shift loadings, with the effect being that the clause is inherently unclear). The higher of the 2 amounts will constitute ‘the loading’ payable ‘during a period of leave’ and the relevant calculations for the loading are made by reference to the entire period of leave taken.

[190] Ai Group submits that clause 22.3 of the PLED deviates from the extant provision by prescribing the amounts payable pursuant to it as hourly rates and that the clause does not state that the amounts described at, for example, clause 22.3(b)(i) are to be calculated by reference to the amounts that would be payable to the employee for the entire duration of the leave. They submit that the clause appears to require an hour-by-hour comparison and calculation and that this amounts to a substantive variation to the terms of the award. Ai Group suggests that the PLED should be amended to make it clear that the amounts referenced at clause 22.3(b) are to be calculated by reference to the entire period of leave taken by an employee.

[191] The SDA submits that Ai Group’s further submissions deal with an understanding of annual leave loading as being judged in total at the end of the period. They submit that Ai Group’s approach seems to presume that annual leave can only be taken as a specific period. They submit that that requirement does not appear in the current award or in the FW Act, which provides at s.88(1) that paid annual leave may be taken for a period agreed between the employee and the employer and at s.88(2) that the employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.

[192] The SDA submits that the approach at s.88 of the FW Act is not novel, as s.236(2) of the Workplace Relations Act 1996 (Cth) provided: ‘To avoid doubt, there is no maximum or minimum limit on the amount of annual leave that any employer may authorise an employee to take.’ They state that annual leave may be taken in any period agreed between the employer and employee, with annual leave often being granted in hourly components. Consequently, any loadings should also accrue hourly.

[193] The SDA disagrees with Ai Group’s further characterisation of clause 22.3 of the PLED as a substantive variation to the terms of the award. They contend that the provision the subject of Ai Group’s challenge is also found in the General Retail Award and that provision remains unchanged from the initial plain language exposure draft published in 2017. They submit that that provision was not challenged by any party and does not appear to have been raised in any of the Commission’s summary documents. They contend that this can only mean that the Commission rightly decided in their favour in respect of the retail industry and should conclude the same regarding the fast food industry.

[194] The SDA submits that s.235(1) of the Workplace Relation Act 1996 (Cth) provided that if any employee takes annual leave, they must be paid a rate for each hour (pro-rated for part hours) of annual leave that is no less than the rate that, immediately before the period begins, in the employee’s basic periodic rate of pay (expressed as an hourly rate). They submit that Ai Group is effectively seeking to make late submissions regarding a settled matter for a substantive change to the way annual leave loading is applied in the fast food industry and this should be rejected.

[195] The SDA submits that annual leave loading was initially conceived as a mechanism to ensure that employees did not suffer a financial detriment while on leave and, in this context, it becomes clear that the purpose of the provision providing that either the weekend penalty rates or the 17.5% loading applies is to ensure that employees do not suffer a detriment in respect of their weekend penalty rates. However, to exclude the 17.5% from other days or hours taken may result in an employee suffering a detriment on those days. They submit that, as such, the submissions of Ai Group, together with their proposed wording, should be rejected.

[196] In relation to the period of leave and calculation of annual leave, we note that paid annual leave may be granted in hourly components and may be taken for a period agreed between the employee and employer. Prescribing amounts payable pursuant to clause 22.3(b) as hourly rates is consistent with the approach taken in other plain language awards and facilitates calculation of payment for period of leave less than a week. However, the draft clause is not consistent with other plain language awards or the current award in that it is not clear that the amounts referenced at clause 22.3(b) of the PLED are calculated by reference to the period of leave taken.

[197] The rate of pay while on a period of annual leave was discussed in a Review decision dated 13 July 2015 100 (July 2015 decision). The Full Bench in that matter stated:

‘[76] Historically awards have provided that an employee will continue to receive their ordinary rate of pay while on leave. A Full Bench decision in 24 January 2006 101 stated:

“[35] ... We refer in particular to the Commission’s principles concerning holiday pay as formulated in the Annual Leave Cases 1971 [(1972) 144 CAR 528.]. In an announcement made on 7 June 1972 the Commonwealth Conciliation and Arbitration Commission confirmed the view it had earlier expressed that “an employee taking annual leave…shall be paid the amount of wages (or salary) as he would have received in respect of the ordinary time he would have worked had he not been on leave” [Ibid].

[198] In the July 2015 decision, the Full Bench noted that an employee’s ordinary rate of pay may be higher than the base rate of pay provided for under the Act. The Full Bench decided to insert a note in the annual leave clause in all modern awards, satisfying sections 16, 55(4) and 90 of the Act, to explain that when an employee’s base rate is higher than the rate specified in the award, the higher rate must be paid to an employee while on leave. 102 In this award, rates are specified as minimum rates because the award does not contain all-purpose allowances. If an employee’s base rate is higher than the minimum rate, the higher rate must be used when calculating annual leave. The note to that effect is at the beginning of clause 22 of the PLED.

[199] We deal with the redrafting of the PLED clause further below.

Proposed redrafting

[200] Ai Group submits that the SDA’s suggestion of replacing the proposed provision with the current award provision would alleviate some concerns relating to the drafting but would not address all the issues raised. They submit that the proposed wording at clause 22.3 of the PLED should be replaced with the following (noting that their proposal does not include a provision applying to ‘employees who would have worked on shiftwork had they not been on leave’ because the current award does not contemplate the performance of shiftwork):

‘22.3 Annual leave loading

(a) During a period of annual leave an employee will receive a loading on annual leave accrued, in accordance with clause 22.3.

(b) The loading will be the higher of the following two amounts, but not both:

(i) 17.5% of the minimum hourly rate prescribed by clause 15, multiplied by the number of ordinary hours of work that the employee would have been required to perform had the employee not taken leave.

(ii) The relevant weekend penalties that would have been payable to the employee for ordinary hours of work had the employee not taken leave.

(c) For the purposes of clause 22.3(b), the amounts described by clauses 22.3(b)(i) and 22.3(b)(ii) are to be calculated in relation to the entire period of leave taken by the employee.

(d) For the purposes of clause 22.3(b)(ii), the relevant weekend penalty is the applicable weekend penalty rate prescribed by clause 21.1, less the minimum hourly rate prescribed by clause 15.’ 103

[201] As mentioned above, we think that the PLED clause should be redrafted to address the issues raised by the parties. However, we do propose to adopt the Ai Group’s draft clause.

[202] Similar wording to the Ai Group’s proposal was considered in a decision dated 20 August 2019 104 (August 2019 decision), determining outstanding plain language project issues. In a statement dated 28 February 2019,105 we proposed to adopt as a model clause the wording that had been suggested by Ai Group during the plain language re-drafting of the Clerks Award.106  In proposing the model clause we noted that, although the solution appeared to be relatively straightforward in terms of drafting, it required the reader to deduct the minimum wage from the penalty rates clause and then compare the remainder to the annual leave loading, which may make the award more complex and difficult for users to apply. We decided not to adopt the proposed model clause at that time and noted that the issues should be considered on an award by award basis.

[203] However, given the nature of the issues raised by the parties in relation to the Fast Food Award, in particular the uncertainty about the percentages to be compared in the clause, we have decided to introduce a definition of ‘relevant weekend penalty percentage’ as follows:

‘In clause 22.3 the relevant weekend penalty percentage is the applicable percentage of the minimum hourly rate specified in clause 21, less 100%’

[204] We acknowledge that a clause requiring the reader to deduct the minimum rate from the penalty rates and then compare the remainder to the annual leave loading will introduce some complexity into the award, but, on balance, we consider that such a clause is the clearest way to express the entitlement to annual leave loading.

[205] Our proposed redraft of the clause also:

•  amends clause 22.3 of the PLED to refer to ‘annual leave loading’;

•  removes cl. 22.3(b)(ii) which refers to shiftworkers. We have made a consequential amendment to remove the reference to dayworkers as this is not a defined term in the award, the clause simply refers to ‘an employee’.

•  amends the comparison required by the clause to more closely reflect the terms of the current award.

[206] We do not consider that a provision similar to cl.22.3(c)of the Ai Group’s proposed clause is necessary.

[207] It is our provisional view that clause 22.3 of the PLED be amended as follows:

22.3 Annual leave loading

(a) In clause 22.3 the relevant weekend penalty percentage is the applicable percentage of the minimum hourly rate specified in clause 21, less 100%.

(b) During a period of accrued annual leave an employee will receive a loading calculated on the employee’s minimum hourly rate specified in clause 15—Minimum rates.

(c) The loading will be the greater of the following 2 amounts:

(i) 17.5% of the employee’s minimum hourly rate for the ordinary hours the employee would have worked if they were not on leave, or

(ii) the relevant weekend penalty percentages of the employee’s minimum hourly rate for the ordinary hours the employee would have worked on a weekend if they were not on leave.

[208] It is our provisional view that the amended clause 22.3, set out at [206] above, resolves items 52, 53, 54, the new item and other related drafting issues.

Item 55 – clause 22.6(a)—Excessive leave accruals: general provision

[209] Item 55 relates to the reference to clause 22.2 at clause 22.6(a) of the PLED. Ai Group submit that if clause 22.2 of the PLED is deleted as a result of their submission (item 50), then the reference to clause 22.2 at clause 22.6(a) of the PLED should also be deleted. 107 The SDA oppose Ai Group’s submission.108

[210] As set out above, we have expressed the provisional view that clause 22.2 of the PLED should be deleted. It is also our provisional view that the words ‘(or 10 week’s paid annual leave for a shiftworker, as defined by clause 22.2)’ in clause 22.6(a) of the PLED and the words ‘(or 5 weeks’ paid annual leave for a shiftworker, as defined by clause 22.2)’ in clause 22.8(d) of the PLED should be deleted. It is our provisional view that this resolves item 55 is now resolved.

Other matters

Cross-references

[211] In clause 20.6, Table 5, the reference to ‘clause 20.6(a)’ in Note 1 has been amended to ‘Table 5’.

[212] Clause 20.7 has been updated to correct a cross-referencing error.

Clause 11—Casual employees

[213] Clause 11.3 of the PLED contains the following note:

‘NOTE 1: The casual loading is paid instead of entitlements from which casuals are excluded by the terms of this award and the NES. See sections 86 to 93 of the Act.’

[214] In a decision [2014] FWCFB 9412 109 a Full Bench decided that it would not include in exposure drafts a clause identifying provisions of awards that do not apply to casuals due to the controversy amongst interested parties about which entitlements casual employees are not entitled to. For those reasons, we will delete the note at clause 11.3 of the PLED and renumber Note 2 as a Note.

Casual terms award review

[215] A decision and an award variation determination were issued on 27 September 2021, 110 in relation to the Casual terms award review (AM2021/54). The following amendments have been made to the PLED to incorporate the resulting amendments made to the award:

•  a definition of ‘casual employee’ has been inserted at clause 2;

•  a reference to the casual conversion arrangements provisions in the Act (Division 4A) has been inserted at clause 3.2;

•  clauses 11.1 and 11.2 have been deleted;

•  clauses 11.3–11.6 have been renumbered as clauses 11.1–11.4;

•  clause 11.1 has been amended to include a reference to the definition of ‘casual employee’ in clause 2;

•  clause 11.4 has been replaced with the new model term; and

•  the cross-references at clauses 18.2(a)(ii), 20.6(a) and 21 have been updated to reflect renumbered clauses.

Annual Wage Review 2020–21

[216] As a result of the decision issued in the Annual Wage Review 2020–21 111 which came into operation in the current award on 1 July 2021, the monetary amounts in clauses 15.1, 15.4, 17.2, 17.3, Schedule A, clauses B.1.1, B.2.1 and clauses C.4.2 and C.10.3 of the PLED have been updated.

Expense-related allowances 2021

[217] As a result of the adjustment to expense-related allowances 112 which came into operation in the current award on 1 July 2021, the monetary amounts in clauses 17.4, 17.8 and B.2.1 of the PLED have been updated.

Clause 21—Penalty rates

[218] The reference to clause 21.1 will be deleted as there are no other subclauses in clause 21—Penalty rates. Cross-references throughout the PLED will be updated accordingly.

[219] In Table 6—Penalty rates, the words “all ordinary hours” have been replaced with the words “any time of day” to clearly state that the specified penalty rates are paid for ordinary hours worked at time of day on Saturdays, Sundays and public holidays. The reference to ‘clause 21.1’ in Note 1 has been amended to ‘Table 6’.

Schedule B—Summary of Monetary Allowances

[220] As a result of errors identified by the Modern Awards team in the calculation of certain wage-related allowances, the following changes have been made to the table at clause B.1.1:

•  the percentage of the Broken Hill allowance has been changed from 162.7% of the standard rate to 162.64%, to calculate an equivalent weekly allowance value to the 2010 Award. The percentage has been derived as 4.28% (the percentage of the weekly standard rate) multiplied by 38; and

•  the percentage of the total amount for the cold work allowances has changed from 3.3% of the standard rate to be the ‘sum of both cold work allowances’ instead, as 3.3% of the standard rate will not always provide the same result as the adding both cold work allowances together.

Schedule X—Additional measures during the COVID-19 pandemic

[221] As a result of the decision issued relating to the award flexibility schedules 113 which came into operation in the current award on 1 January 2022, the date in clauses X.1 and X.2.1(d) has been changed from 29 March 2021 to 30 June 2022.

Application to vary

[222] An application to vary the current award was lodged by EPI Capital Pty Ltd (EPI) on 1 March 2022. The application seeks that the Commission make such determinations in accordance with s.160 of the Fair Work Act 2009 to vary clause 27—Breaks, are necessary to remove the ambiguities or uncertainties in clause 27. EPI contends that clause 27 is ambiguous or uncertain because it is unclear whether clause 27.1(a) prescribes:

(a) an employee’s minimum entitlement to a break, i.e. that employees are entitled to at least the breaks set out in that clause; or

(b) an employee’s minimum and maximum entitlement to a break, i.e. that giving employees any break other than those set out at clause 27.1(a) would contravene the Award.

[223] Clause 27.1 of the current award states:

27. Breaks

27.1 Breaks during work periods

(a) Breaks will be given as follows:

(b) The timing of the taking of a rest break or meal break is intended to provide a meaningful break for the employee during work hours.

(c) An employee cannot be required to take a rest break or meal break within one hour of commencing or ceasing work. An employee cannot be required to take a rest break(s) combined with a meal break.

(d) The time of taking rest and meal breaks and the duration of meal breaks form part of the roster and are subject to any agreement reached under clause 12.2 regarding a part-time employee’s regular pattern of work. An agreed variation pursuant to clause 12.3 or 12.5 may include a variation to the time of taking rest and meal breaks.

(e) Rest breaks are paid breaks and meal breaks are unpaid breaks.

[224] EPI submits that the clause is intended to provide for an employee’s minimum entitlement to a break only and that it should not be a contravention of the award to give employees breaks other than those set out in clause 27.1(a), provided the employer complies with the remainder of clause 27. EPI submits that the expression “Breaks will be given as follows” in clause 27.1(a) is open to a very prescriptive interpretation, especially when those words are combined with the words “No rest break” and “No meal break”.

[225] EPI contends that this ambiguity or uncertainty could be removed by amending clause 27.1(a) as follows:

(a) deleting the words “Breaks will be given as follows:” and replacing them with the words, “An employee who works the number of hours in any one shift specified in the following table is entitled to the corresponding break or breaks:”

(b) deleting the row beginning “Less than 4 hours” from the table;

(c) deleting the words “No meal break” from the table and replacing them with the words, “No meal break entitlement”.

[226] In the PLED the comparable provision to clause 27.1 of the current award is clause 14 which states:

14. Breaks

14.1 Employees are entitled to rest and meal breaks in the following circumstances:

Table 2—Estimates to rest and meal breaks

NOTE: Rest breaks count as time worked. Meal breaks do not count as time worked.

14.2 The timing and duration of rest and meal breaks for part-time employees must be included in the roster and are subject to any agreement made under clause 10.3 regarding a part-time employee’s regular pattern of work.

14.3 A variation agreed under clauses 10.5 and 10.7 for a part-time employee may include a variation to the time of taking rest and meal breaks.

14.4 When rostering rest and meal breaks, the employer must seek to ensure that the employee has meaningful breaks during work hours.

14.5 An employer cannot require an employee:

(a) to take a rest break or meal break within the first or the last hour of work; or

(b) to take a rest break combined with a meal break; or

(c) to work more than 5 hours without taking a meal break

[227] EPI concedes that it does not have standing under section 160 to make the application in its own name and asks that the Commission consider making a determination on its own initiative to address the identified ambiguity or uncertainty.

Next steps

[228] The parties are invited to comment on the provisional views expressed at [156], [207], [208] and [210]above, regarding proposed clause 24.3 of the PLED by 3.00pm on Thursday 7 April 2022.

[229] The parties are invited to comment on the substance of EPI’s application and whether any amendments should be made to clause 14 of the PLED, by 3.00pm on Thursday 7 April 2022. Submissions on the issue of standing are not necessary.

[230] Final tracked and clean versions of the PLED, reflecting this decision, will published shortly.

[231] Submissions must be sent electronically to amod@fwc.gov.au. Any contested issues in respect of our provisional views, the EPI application and the finalisation of the variation determination will be determined on the papers by Vice President Hatcher.

 PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR739939>

 1   [2020] FWCFB 5674.

 2   Fast Food Award PLED, 28 October 2020; Comparison document of the Fast Food Award and the PLED.

 3   [2021] FWCFB 293.

 4   Summary of submissions, 21 January 2021.

 5   January PLED, 21 January 2021.

 6   Transcript, 12 February 2021.

 7   Agenda for Fast Food Award conference, 11 February 2021.

 8   [2021] FWCFB 858.

 9   Summary of submissions, 18 February 2021.

 10   February 2021 PLED, 18 February 2021.

 11   [2021] FWCFB 858 at paragraphs [13] and [14].

 12   SDA submission, 25 November 2020, para 4.

 13   Ai Group reply submission, 9 December 2020, para 4.

 14   Hospitality Award comparison document, 27 April 2017; Hospitality Award PLED summary of submissions, 8 September 2017, item 3.

 15   Agenda for Fast Food Award conference, 11 February 2021.

 16   SDA submission, 25 November 2020, para 6; SDA submission, 26 February 2021, paras 3–8.

 17   Ai Group reply submission, 9 December 2020, paras 6, 22; Ai Group reply submission, 15 March 2021, para 2.

 18   Agenda for Fast Food Award conference, 11 February 2021.

 19   SDA submission, 26 February 2021, paras 9–16.

 20   Ai Group reply submission, 15 March 2021, para 3.

 21   [2022] FWCFB 5

 22   [2022] FWCFB 5, [51] – [53]

 23   SDA submission, 25 November 2020, para 9; SDA submission, 26 February 2021, para 17.

 24   Ai Group submission, 25 November 2020, paras 18–22.

 25   [2017] FWCFB 344; [2017] FWCFB 1612; [2017] FWCFB 3337; [2018] FWCFB 5504.

 26   [2018] FWCFB 5504 at [17].

 27   SDA submission, 26 February 2021, para 18.

 28   Ai Group reply submission, 15 March 2021, para 4.

 29   Ai Group submission, 25 November 2020, paras 23–24.

 30   SDA reply submission, 9 December 2020, para 6.

 31   ABI submission, 25 November 2020, para 2.2.

 32   Ai Group reply submission, 9 December 2020, para 33.

 33   SDA reply submission, 9 December 2020, paras 46–48.

 34   Ai Group submission, 25 November 2020, paras 25–27.

 35   SDA reply submission, 9 December 2020, para 6.

 36   Agenda for Fast Food Award conference, 11 February 2021.

 37   Transcript, 12 February 2021, PN48–54; [2021] FWCFB 858 at [11].

 38   SDA submission, 25 November 2020, para 12.

 39   Ai Group reply submission, 9 December 2020, para 11.

 40   SDA submission, 26 February 2021, paras 19–28.

 41   Ai Group reply submission, 15 March 2021, paras 5–6.

 42   [2019] FWCFB 4679.

 43   SDA submission, 25 November 2020, paras 11 and 13; SDA submission, 26 February 2021, para 29.

 44   Ai Group reply submission, 9 December 2020, paras 12–13.

 45   SDA submission, 25 November 2020, para 14.

 46   Ai Group reply submission, 9 December 2020, para 14.

 47   SDA submission, 26 February 2021, paras 30–31.

 48   SDA submission, 25 November 2020, para 16; Ai Group reply submission, 9 December 2020, para 17; SDA submission, 26 February 2021, paras 32–33; Ai Group reply submission, 15 March 2021, para 9.

 49   Plain language guidelines, 3.14.

 50   [2020] FWCFB 4350 at [300].

 51   Ai Group submission, 25 November 2020, paras 32–35.

 52   ABI submission, 25 November 2020, para 2.3.

 53   SDA submission, 25 November 2020, para 18; SDA reply submission, 9 December 2020, paras 9–12 and 49

 54   Ai Group reply submission, 9 December 2020, para 34; Ai Group submission, 26 February 2021, paras 2–6.

 55   SDA reply submission, 15 March 2021, paras 3–10.

 56   [2018] FWCFB 5553 at [58]–[60].

 57   Agenda for Fast Food Award conference, 11 February 2021.

 58   Transcript, 12 February 2021, PN54.

 59   SDA submission, 25 November 2020, para 19; SDA submission, 26 February 2021, paras 34–37.

 60   ABI submission, 25 November 2020, para 2.4; Ai Group submission, 25 November 2020, paras 36–37; SDA reply submission, 9 December 2020, paras 13–14.

 61   Ai Group submission, 25 November 2020, paras 41–44.

 62   Ai Group submission, 25 November 2020, paras 51–52.

 63   SDA reply submission, 9 December 2020, para 15.

 64   Ai Group submission, 25 November 2020, paras 54–55; Ai Group submission, 26 February 2021, paras 7–8.

 65   SDA reply submission, 9 December 2020, paras 17–18; SDA reply submission, 15 March 2021, paras 11–17.

 66   SDA submission, 25 November 2020, paras 20 and 22.

 67   Ai Group reply submission, 9 December 2020, paras19 and 21.

 68   SDA submission, 25 November 2020, para 23.

 69   Ai Group reply submission, 9 December 2020, para 24.

 70   SDA submission, 25 November 2020, para 24.

 71   Ai Group reply submission, 9 December 2020, para 24.

 72   Ai Group submission, 25 November 2020, paras 57–59.

 73   SDA reply submission, 9 December 2020, para 20; SDA submission, 15 March 2021, paras 18–21.

 74   Ai Group submission, 25 November 2020, paras 60–61; Ai Group submission, 26 February 2021, paras 12–16.

 75   SDA reply submission, 9 December 2020, paras 21–25; SDA reply submission, 15 March 2021, paras 22–28.

 76   [2017] FWCFB 1612 at [75]–[77].

 77   [2017] FWCFB 344 at [192]–[204].

 78   Ai Group submission, 25 November 2020, paras 63–65.

 79   SDA submission, 9 December 2020, paras 27–28.

 80   Ai Group submission, 25 November 2020, paras 72–74.

 81   SDA reply submission, 9 December 2020, para 35; SDA submission, 26 February 2021, paras 38–42; Ai Group submission, 15 March 2021, paras 11–12.

 82   SDA submission, 25 November 2020, para 32; Ai Group submission, 25 November 2020, paras 75–79; SDA reply submission, 9 December 2020, paras 38–39; Ai Group further submission, 8 March 2021, paras 1–13; SDA reply submission, 15 March 2021, paras 35–49.

 83   Ai Group general issues submission, 31 August 2016 at [4]

 84   [2017] FWCFB 5536 at [583]–[591]; see also [2017] FWCFB 3433 at [363]–[379].

 85   [2018] FWC 1544 at [13].

 86   [2019] FWC 8468; Conference transcript 19 December 2019; [2019] FWC 8582.

 87   SDA submission, 25 November 2020, para 32.

 88   Ai Group submission, 25 November 2020, paras 75–79.

 89   SDA reply submission, 9 December 2020, paras 36 and 39.

 90   Ai Group submission, 8 March 2021, paras 1–13.

 91   SDA submission, 25 November 2020, para 32.

 92   SDA reply submission, 15 March 2021, paras 35–48.

 93   Ai Group submission, 25 November 2020, paras 75–79.

 94   SDA reply submission, 9 December 2020, paras 36 and 39.

 95   [2008] AIRCFB 1000

 96   PR985113

 97   [2013] FWC 5369 - note that an appeal was lodged against parts of this decision, however, not the parts that related to the removal of headings and clauses referring to shift work.

 98   Ibid [10].

 99   [2010] FWAFB 379

 100   [2015] FWCFB 4658 at [73]–[94].

 101   PR967812.

 102   [2015] FWCFB 4658 at [82]–[84], [94].

 103   Ai Group submission, 8 March 2021, paras 1–13.

 104   [2019] FWCFB 5409 at [146]–[152].

 105   [2019] FWCFB 1255 at [64]–[70].

 106   [2018] FWCFB 5553 at [173].

 107   Ai Group submission, 25 November 2020, para 80.

 108   SDA reply submission, 9 December 2020, para 36.

 109   [2014] FWCFB 9412 at [69]

 110   [2021] FWCFB 6008, PR733845.

 111   [2021] FWCFB 3500, PR729255, PR729672.

 112   PR729443.

 113   [2021] FWCFB 6636; PR736911.