[2009] AIRCFB 998 |
|
DECISION |
Workplace Relations Act 1996
s.576H—Commission may vary modern awards
BROADCASTING AND RECORDED ENTERTAINMENT AWARD 2010
[MA000091]
JUSTICE GIUDICE, PRESIDENT |
MELBOURNE, 30 DECEMBER 2009 |
[1] This decision concerns an application by the Australian Entertainment Industry Association (AEIA) to vary the Broadcasting and Recorded Entertainment Award 2010 1 (modern award) to alter provisions which relate to cinema workers to:
Penalty averaging clause
[2] The AEIA submits that a penalty averaging clause has been a feature of the Entertainment and Broadcasting Industry – Cinema Award – 1998 2 since 1997. The clause provides that cinema workers receive an additional 8% in lieu of Sunday penalty payments and reduced public holiday penalties for casuals. The modern award does not include the penalty averaging provision but includes Sunday penalty rates and increased public holiday penalty rates. It was put by the AIEA that the provisions of the modern award have the effect of reducing the take home pay of those employees who work Monday to Saturday shifts while providing penalty rates for only those employees who are required to work on a Sunday.
[3] The Media Entertainment and Arts Alliance (MEAA) did not object to the concept of a penalty averaging clause but claimed that it is “incumbent on the AEIA to show how many Sunday and public holiday shifts are compensated for by the 8% penalty”.
[4] The submission of the Shop, Distributive and Allied Employees Association (SDA) acknowledged the penalty averaging position of the parties to the current award but submitted that the matter for determination was whether the provision is “a fair and effective safety net condition of employment for a modern award”. It argued that the penalty averaging provision requires scrutiny to ensure that it does not disadvantage employees who work a majority of weekend and public holiday shifts while advantaging employees who work solely or mainly weekday shifts.
[5] In response to the MEAA position the AEIA reiterated that the current penalty averaging provision was negotiated between the parties during the minimum rates adjustment process, was included in the award as part of the minimum rate rather than an all-purpose allowance, and was approved as part of the properly fixed minimum rate when the current award was simplified. It also submitted that the penalty averaging component, which is set as a percentage of the base rate, retains the minimum rates relativities. In relation to the SDA submission the AEIA noted that the SDA does not represent cinema employees and had not provided any material to support the claim that the penalty averaging provision does not provide a fair and effective safety net.
[6] As the variation is sought to restore a provision of the current award which, if not reinstated could have the effect of disadvantaging some employees and is not opposed by the MEAA, we have decided to grant the application. We shall also make the consequential variations sought to the clauses relating to Sunday penalties and public holidays rates as they relate to cinema employees.
[7] The penalty averaging provision will be inserted in the modern award in that part dealing with penalty rates for cinema workers and become a new cl.56.1, with consequent renumbering to the remaining parts of the clause.
Junior Rates
[8] A variation to the modern award was sought to replace the provisions of clause 14.4 – Junior employees with different rates for cinema employees. AEIA sought to restore the junior rates provisions of the current award, which provide for rates of 65% of the applicable rate for employees 18 years and under and 90% of the applicable wage for employees aged 19 to 21 years. The AEIA submitted if the modern award is not varied as sought junior employees in cinemas will have their wages reduced.
[9] The junior rates included in the modern award have been arrived at taking into account junior rates included in 26 different federal awards and NAPSAs all of which will be replaced by the modern award. We are not prepared, at this stage, to insert specific provisions for one area of coverage. We note the position of the AEIA concerning a reduction in rates and that the variation is not opposed by the MEAA. We also note that the junior rates in cl.14.4 of the modern award are calculated as a percentage of the Grade 5 entertainment employee rate and not, as sought in the variation application, by reference to the “applicable classification”. It is likely that in a majority of cases the “applicable classification” would be the Grade 3 entertainment employee rate. While there may be a reduction in rates for 16, 17 and 19 year olds, there will be an increase in rates for 18 and 20 year olds. These are matters that are appropriately dealt with by the transitional provisions.
[10] We decline to vary the award to amend the junior rates provisions.
Clause 55 Special Allowances
[11] The AEIA variation sought to an amendment to clarify that cl.55 – Special Allowances relates only to theatre managers. It is not opposed by the MEAA. Given that the words of the relevant clause restrict its application to “managers” we are prepared to grant the variation so that the title of the clause reflects that position.
Meal Breaks and breaks between shifts
[12] The AIEA sought to vary the modern award in relation to cinema employees to include provisions for meal breaks and to provide for the payment of penalties where insufficient breaks are provided between shifts. As both provisions are supported by the MEAA, are features of the current award and appear to have been inadvertently omitted, we will make the variations sought.
[13] The two new clauses will be inserted in the modern award as suggested in the draft order filed with the application.
[14] The order giving effect to this decision is issued with it.
BY THE COMMISSION:
PRESIDENT
1 MA000091.
2 AP780422CAV.
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